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UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBBUVRY 


THE     LAW 


OF 


ELECTRIC  WIRES 


IN 


STREETS   AND   HIGHWAYS. 


Edward  Quinton  Keasbey, 

Of  the  Ne-M  Jersey  Bar, 


CHICAOO: 
CALLAQHAN     &    CO. 

1892. 


r 


COPYRIGHT,    l8q2, 
BY 

Callaghax  &  Co.  Chicago. 


PREFACE. 


It  is  always  interesting  to  observe  the  manner  in  which 
the  courts  deal  with  new  inventions  and  apply  old  principles 
of  law  to  new  conditions.  Invention  within  a  few  years  past 
has  been  especially  directed  to  new  applications  of  electricity, 
and  in  order  to  serve  the  new  uses  that  have  been  found  tor 
it,  streets  and  highways  have  been  taken  as  convenient  lines 
for  the  distribution  of  the  electric  current.  The  use  of  the 
streets  for  this  purpose  has  given  rise  to  some  legal  contro- 
versies, and  it  seems  desirable  that  the  decisions  on  the  sub- 
ject should  be  collected  and  examined  in  order  to  see  how 
the  principles  of  the  law  relating  to  the  streets  have  beer 
applied  to  these  new  uses. 

The  poles  and  wires  for  the  electric  railway  have  attracted 
especial  attentfon  to  the  subject  within  the  last  two  or  three 
years,  and  it  was  a  discussion  of  these  in  an  article  I  wrot** 
for  the  Harvard  Law  Review  for  January,  1891,  that  sug 
gested  a  more  careful  examination  of  the  law  relating  to  the 
use  of  the  streets  and  roads  of  all  kinds  for  electric  wi'^ss. 
whether  overhead  or  underground. 

Edward  Q.  Keasbev. 

Newark,  New  Jersey,  June  i,  1892. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

INTRODUCTORY. 

PAGE 

1.  Growing  Importance  of  the  Subject i 

2.  The  Legal  Relations  of  the  Wires  to  the  Highways,  ...  2 

3.  Arrangement  and  Division  of  the  Subject, 3 

1.  Public  Rights, 3 

2.  Private  Rights, 4 

CHAPTER  II. 

BY    WHAT    AUTHORITY    THE    STREETS    MAY    BE    USED    FOR 
ELECTRIC    WIRES. 

1.  Introductory, 7 

2.  Analogies  and  General  Principles, 7 

3.  The  Power  Over  the  Streets  Belongs  to  the  Legislature,       ...  7 

4.  Power  of  Municipality  is  Only  What  is  Delegated,    ....  8 

5.  Extent  and  Limits  of  Ordinary  Powers  of  Municipality,        ...  9 

6.  The  Same  Continued — Municipalities   Cannot  Grant  Exclusive  Fran- 

chises,   .....••••••••  9 

7.  The  Same— Special    Importance   of    the    Subject   with    Reference   to 

Electric  Wires, ^^ 

8.  Ordinary  Powers  of  Municipalities  with  Respect  to  the  Streets,       .  11 

9.  Question  Whether  the  Various    Electric  Wires  Come  Within  These 

Lines, "3 

10.  Powers  of  Cities  to  Grant  the  Privilege  with   Respect  to  These  and 

Similar  Uses— Steam  and  Horse  Railroads, 14 

11.  The  Same — Electric  Railways, IS 

12.  Power  of  Municipality  to  Authorize  Street  Railway  Companies  to  Use 

Poles  and  Electric  Wires, 16 

13.  The  Same  Subject— Cases— Taggart  v.  Newport  Street  Railway  Co.,  17 

14.  The    Same— Mt.    Adams    and    Eden    Park    Inclined    Railway    Co.    v. 

Winslow, 18 

15.  The  Same — Lonergan  v.  Lafayette  Street  Railway  Co.,  ...  18 

16.  The  Same — Louisville   Bagging  Manufacturing    Co.   v.   Central   Pas- 

senger Railwaj'  Co.,  ......-•••  ^9 

17.  The  Same— Detroit  City  Railway  Co.  v.  Mills, 19 

18.  The  Same— Pelton  v.  East  Cleveland  R.  R.  Co., 20 

19.  The  Same — Cases  in  Chancery  in  New  Jersey, 20 

20.  The  Same — Contrary  Decision  in  the  New  Jersey  Supreme  Court,      .  22 

21.  The  Same — Telegraph  and  Telephone  Lines, 23 

22.  The  Same — Electric  Lighting, 24 

(V) 


vi  CONTENTS. 

PAGE 

33.  Governing  Principle  in  All  These  Cases, 25 

34.  The  Paramount  Authority  is  in  the  Legislature,  ....  25 
25.  Authority  of  Some  Kind  is  Required  for  Special  Uses  of  the   Street, 

Even  Though  They  are  Proper  Street  Uses, 26 

CHAPTER  III. 

MUNICIPAL  CONTROL — CONSENT  OF  LOCAL  AUTHORITIES. 

1.  Grants  are  Ordinarily  Made  Subject  to  Control  of  Local  Authorities,       28 

2.  Grants  Upon  Condition   Precedent — Power  of  Municipality  in   Such 

Cases, 29 

3.  Grants  Subject  to  Municipal  Regulation, 30 

4.  Designation  of  the  Streets  to  be  Used  for  Telegraph,  Telephone  and 

Electric  Light  Wires, 31 

5.  The  Power  to  Designate  Streets  or  to  Specify  the  Kind  of  Poles  Does 

Not  Imply  the  Right  to  Impose  Other  Conditions,  ...  31 

6.  Electric  Lighting  Specially  Subject  to  Local  Control,   ....  32 

7.  How  Municipal  Consent  May  be  Given,       ......  33 

8.  What  are  the  "  Local  Authorities,"   . 34 

9.  Power  to  Revoke  Franchise  and  Remove  Poles  and  Wires,       .         .  34 

10.  The  Same — Cases  Relating  to  Telegraph  and  Telephone  Wires,  35 

11.  The  Same — Other  Cases, 36 

CHAPTER  IV. 

MUNICIPAL    CONTROL POLICE    REGULATIONS. 

1.  General    Power   of    Police    Regulation   with    Respect   to    Poles   and 

Wires, 38 

2.  Cases  on  This  Point  Relating  to  Telegraph  Lines  in  Cities,          .  38 

3.  Cases  Relating  to  Electric  Light  Wires,       ......  39 

4.  Extent  and  Meaning  of  the  Power  to  Impose  License  Fees,           .         .  40 

5.  The  Power  to  Regulate  Does  Not  Imply  the   Power  to   Lay  an   Em- 

bargo,    .         .         , 41 

6.  The  Power  to  Regulate  Does  Not  Imply  the  Power  to  Fix  Tolls  and 

Rates, 42 

7.  Condition  that  Other  Companies  Shall  be   Allowed   to  Use  the  Same 

Poles, 42 

8.  Municipal  Rights  in  the  Streets  are   Not  Those  of  an   Owner  but  are 

Held  for  Public  Purposes, 43 

CHAPTER  V. 

POLES     AND     WIRES     AS      AN     OBSTRUCTION      OF     THE      HIGHWAY — HOW     FAR 
JUSTIFIED    BY    GRANT    OF    FRANCHISE. 

1.  Poles  Erected  in  the  Streets  without   Legislative   Sanction  are   Nui- 

sances,          45 

2.  Poles  Set  Up  with  Express  Legislative  Sanction  are  Not  Nuisances,  46 

3.  General  Authority  Does  Not  Authorize  Dangerous  Obstructions,    .  47 

4.  Cases  of  Telegraph  Lines  in  the  Street — Obstruction  to  Ordinary  and 

Extraordinary    Use    of    the    Street— Cases    Relating   to    Moving   a 
House, 48 


CONTENTS.  Vll 

CHAPTER  VI. 

UNDERGROUND    WIRES. 

PAGE 

1.  Rights  of  the  Public  and  the  Companies  as  to  Putting  Wires  Under- 

ground,        50 

2.  An   Expensive  and    Difficult    Work.     The    Municipality    Cannot   Re- 

quire it,  ............  50 

3.  Usually  Provided  for  by  Statutes.     English  Statutes  Referred  to,         .  51 

4.  General  Provisions  of  American  Statutes,   ......  53 

5.  The  Legislation  in   New   York  Providing  for  a  Board  of  Electrical 

Control  and  a  Subway  Company, 55 

6.  Decisions  Thereon, 56 

7.  Other  Decisions  Thereon,  .........  56 

8.  Relation  of  the  Electric  Wire  Companies  to  the  Subway  Companies,  58 

CHAPTER  VII. 

RIGHTS    OF    THE    OWNERS    OF    ABUTTING    LANDS    WITH    RESPECT    TO    THE    USE 
OF    THE    STREETS    FOR    ELECTRIC    WIRES.       GENERAL    VIEW. 

1.  The  Multiplication  of  Wires  in  the  Streets  Has  Given  Rise  to  Contro- 

versies with  Landowners, 59 

2.  The  Purpose  for  which  the  Wires  are  Put  There  is  an  Important  Ele- 

ment,        59 

3.  New  Uses.     DifTerent  Views  of  the  Proper  Uses  of  a  Street,        .         .  60 

4.  Views  of  Judge  Dillon  and  Mr.  Lewis,         ......  6i 

5.  Distinction  with  Respect  to  the  Title  in  the  Public  and  in  the  Abutting 

Owner,  .............  61 

6.  In  Either  Case  there  are  Certain  Rights  in  the  Street  as  Such,     .         .  62 

7.  Discussion  of  the  Subject  by  Mr.  Carman  F.  Randolph,   ...  63 

8.  Same  Subject — The  Elevated  Railroad  Cases,          .....  64 

9.  Same  Subject — Other  Cases, 65 

10.  Same  Subject — The  Rights  Really  Affected  are  the   Rights  of  Adja- 

cency Without  Respect  to  Ownership  of  the  Land  in  the  Street,  66 

11.  This  Principle,  if  Recognized,  will  Simplify  the   Discussion,  but  the 

Distinction  Must  be  Considered  in  Reading  the  Cases,  .         .  67 

CHAPTER  VIII. 

RIGHTS    OF    ABUTTING    OWNERS — TELEGRAPH    AND    TELEPHONE. 

1.  Telegraph  and  Telephone  Wires  have  become  Obnoxious  to  Adjoining 

Landowners,     ...'........      69 

2.  The  Question  of  Rights  of  Landowners  Suggested,  but  Not  Answered 

by  Scott  &  Jarnagin  in  186S, 69 

3.  The  Qiiestion  Has  Now  Become  Important, 70 

4.  The  Qviestion  Stated, 71 

5.  Argument  on  One  Side, 71 

6.  Argument  on  the  Other  Side, 72 

7.  Distinction  in  the  Cases  as  to  the  Title  to  the  Land  in  the  Street,         .  72 

8.  Cases  in  Missouri  in  188:  in  Favor  of  the  Electric  Wires,  .         .  73 

9.  Decision  in  Massachusetts  on  the  Same  Side  in  18S3,      ....  74 


viii  CONTENTS. 

PAGK 

10.  Later  Case  in  Missouri, 74 

11.  Other  Decisions  on  the  Same  Side, 75 

12.  Wires  Without  Poles  Not  a  Burden  on  the  Land,  ....  76 

13.  Arguments  on  the  Other    Side — Decisions   in    New    York   and   New 

Jersey 77 

14.  Cases  in  some  Western  Courts,  .        .         , 79 

15.  Recent  Cases  in  Virginia,  Maryland  and  Mississippi,  ...  80 

16.  Other  Cases 81 

17.  Views  of  Text-Book  Writers, 81 

18.  Conclusions  with  Respect  to  the  Right  to   Use  the   Highways  for  the 

Telegraph  and  Telephone 82 

19.  Right  to  Compensation  for  Actual  Damages  in   Obstructing  Access 

and  Light  and  Air,  etc., 83 

20.  No  Further  Use  than  Necessary  Allowed — Liability  for  Cutting  Trees 

in  the  Street, 84 

21.  Fire  Alarm  and  Police  Telegraph — Fire  Alarm  and  Police  Telegraph 

are  Public  Uses — No   Doubt  the   Streets  May  be   Used  for  These 
without  Compensation, 84 

CHAPTER  IX. 

RIGHTS    OF    ABUTTING    OWNERS — ELECTRIC    LIGHT    WIRES. 

1.  The  Purpose  of  the  Use  Being  an  Important  Element,  Electric  Light 

Wires  May  be  Analogous  to  Gas   Pipes    Rather  than  to  Telegraph 
Lines, 86 

2.  Whether  Gas  Pipes  May  be    Laid  in  Country  Roads  or  City  Streets 

Without  Compensation, 87 

3.  Distinction  Between  Urban  and  Rural  Easements,     ....  88 

4.  Pipes  or  Poles  and  Wires  for  Lighting  the  Streets  a  Proper  Use  Wher- 

ever They  are  Needed  for  that  Purpose, 89 

5.  Cases, 89 

6.  Is  There  a  Distinction  Between  Wires  Used  Solely  for  Public  Light- 

ing and  Those  Used  for  Private  Buildings  Also  ?     .         .         .         .  91 

7.  Liability  for  Actual  Interference  with  Rights  and  Privileges  of  Adja- 

cency to  Highway, 91 

CHAPTER  X. 

RIGHTS    OF    ABUTTING   OWNERS — THE    ELECTRIC    RAILWAY. 

1.  Opposition  to  the  Introduction  of  the  Trolley  System,  ....      92 

2.  Peculiar  Rights  of  the  Landowners  in  the  Street,       ....  92 

3.  Two  Questions  to  be  Considered — Rights  of  Adjacency   and   Perver- 

sion of  the  Uses  of  the  Street, 92 

4.  Questions  Suggested  by  Judge  Dillon  on  the  Decision  in  Taggart  v. 

Newport  Street  Railway,  in  January,  1890, 93 

5.  The  Electric  Railway  and  the  Telegraph — Distinctions  and  Compari- 

son,      94 

6.  Is  the  Electric  Railway  a  Nbav  Burden  or  a  Perversion  of   the    Uses 

of  the  Street — Comparison  with  Other  Railroads  on  the  Street,    .  95 

7.  Horse  Railroads  are  Generally  Held  to  be  a  Proper  Use  of  the  Street, 

Imposing  No  New  Burden — Dissenting  Opinions,      •         •         ■         •      95 


CONTENTS.  IX 

PAGE 

8.  Steam    Railroads   are    Now   Generally    Held   Not   to  be  Within   the 

Proper  Uses  of  the  Street, 9^ 

9.  The  Reasons  that  are  Given  for  the  Distinction, 98 

10.  Difference  of  Opinion  as  to  Dummy  Steam  Engines,         .         .         .         loi 

11.  The  Same.     Mode  of  Use  the  Criterion, 103 

12.  Use  of  the  Cable  Railway, i03 

13.  Poles  and  Wires  for  the  Electric  Railway,   .Do  they  Affect  the  Prop- 

erty Rights  of  the  Abutting  Owner  ?     10^ 

14.  Comparison  with  the  Elevated  Railroad  Cases— Poles  Affect  Not  the 

Land,  but  Only  Rights  of  Adjacency,  Unless  the  Use  is  a  Perversion 

of  the  Use  of  the  Street io5 

15.  There  is  no   Change   of  Use    in    Substituting    Electricity   for    Horse 

Power, 106 

16.  Question  of  Interference  with  Use  of  Street  is  a  Q^iestion  of   Fact,         106 

17.  Recent  Cases — Mt.   Adams  and   Eden   Park   Inclined  Railway  Co.  v. 

Winslow, 107 

18.  Pelton  V.  East  Cleveland  R.  R.  Co., 108 

19.  Taggart  v.  Newport  Street  Railway  Co., 109 

20.  Detroit  City  Railway  Co.  V.  Mills, no 

21.  Louisville    Bagging    Manufacturing    Co.    v.    Central   Passenger  Rail- 
way Co.,  .         .         .         .         ■ •  ^^^ 

22.  Lonergan  v.  Lafayette  Street  Railway  Co., m 

23.  Halsey  V.  Rapid  Transit  Street  Railway  Co.,        .         .         .  =  m 

24.  Lockhart  V.  Craig  Street  Railway  Co., "4 

25.  Saginaw  Union  Street  Railway  Cases, "5 

26.  Detroit  City  Railway  Co.  v.  Mills  on  Appeal, 116 

27.  Conclusions, ^^° 

28.  The  Electric  Railway  Used  as  a   Substitute  for  the   Steam  Railway- 

Mode  of  Use  the  Criterion, "9 

CHAPTER  XI. 

CONDEMNATION    OF    PRIVATE    RIGHTS    FOR    LINES    OF    ELECTRIC    WIRES. 

T.  General  Statutory  Provisions, 120 

2.  Statutes  of  Some  of  the  States, 1^0 

3.  If  Private  Rights  are  Affected   or   Consent   is    Required   by    Statute, 

Condemnation  is  Necessary, i-- 

4.  The  Telegraph  and  the  Telephone  are  Public  Uses,       .         .         .         .122 

5.  The  Right  Acquired  is  Only  Such  as  is  Necessary,     .         .  .         123 

6.  Right  of  Way  Over  a  Turnpike  May  be  Condemned  on  Certain  Con- 

ditions,                •         •         •         •         •         •         •         •  "-3 

7.  Failure  to  Agree  as  a  Condition  Precedent  to  Condemnation,  .         .  123 

8.  Designation  of  Streets  as  a  Condition  Precedent  to  Condemnation,  124 

9.  Requirements  of  Petition  to  Condemn, 124 

CHAPTER  XII. 

TELEGRAPHS    ON    POST    ROADS. 

1.  Occasion  and  Purposes  of  the  Act  of  Congress  of  July  24,  1866,  Con- 

cerning Telegraphs  on  Post  Roads, 125 

2.  Decision  of  the  Supreme  Court  Sustaining  and  Construing  the  Act,         125 


X  CONTENTS. 

PAGE 

3.  What  the  Term  Post  Roads  Includes 126 

4.  The  Scope  and  Effect  of  the  Act  as  Declared  by  the  Supreme  Court — 

Equal  Privileges  Secured  to  all  Telegraph  Companies,  .         .         126 

5.  Railroad  and  Turnpike  Companies   Cannot  Give  Exclusive  Rights  to 

Use  Their  Rights  of  Way  for  Telegraph  Purposes,         .         .         .         127 

6.  Practical  Difficulties — Question  of  the  Interference  of  One  Line  with 

the  Other 129 

7.  The  Rights  Conferred  are  Public  and  Not  Private  Rights — The  Latter 

Can  Only  be  Taken  by  Consent, 129 

8.  The  Same — The  Act  of  Congress  Gives  No  Power  to  Condemn,  .    130 

9.  Compensation    Must   be   Made    for    Use   of    Railroad   or    Turnpike,    . 

Although  a  Post  Road, 131 

10.  Does  the  Statute  Imply  that  Telegraph   is  a  Highway  Use  and  Not  a 

New  Burden  on  the  Land? 132 

11.  Telegraphs  on  Post  Roads  are  Subject  to  Municipal  Control,    .         .         132 

12.  Telegraphs  on  Post  Roads  are  Subject  to  State  Taxation,      .         .         .    133 

CHAPTER  XIII. 
J 

TELEGRAPH  LINES  ALONG  RAILROADS. 

1.  Contracts  for  Exclusive  Use   of  Right   of  Way  by   Telegraph    Com- 

panies Void  on  Grounds  of  Public  Policy, 134 

2.  Modifications  and  Exceptions, 135 

3.  Is  a  Telegraph  Line  a  New  Burden  Upon  the  Land  Taken  for  a  Rail- 

road?   136 

4.  Statutory  Authority  Given  to  Telegraph  Companies  with  Respect  to 

the  Use  of  Railroad  Lands  is  to  be  Construed  Strictly,  .         .         137 

5.  Miscellaneous  Matters, 138 

CHAPTER  XIV. 

INTERFERENCE    OF    DIFFERENT    KINDS    OF    ELECTRIC     CURRENTS — CONFLICT- 
ING   USES    OF    ELECTRIC    WIRES    IN    THE    STREETS. 

1.  The  Use  of  the  Telephone  Disturbed  by   Electric   Light  and  Electric 

Railway  Currents, 139 

2.  Causes  and  Manner  of  the  Disturbances  Explained,        ....    139 

3.  The  Same  Subject — Induction  and  Leakage, 140 

4.  Some  of  the  Difficulties  May  be  Avoided  by  the  Metallic  Circuit — Ob- 

jections to  This, 140 

5.  Telephone  Companies  Insisted  that  They  Were  Entitled  to  Protection,    141 

6.  The  First  Contest  Was  with  the  Electric  Light  Wires,      ...         141 

7.  Electric  Light  Wires — Decisions, 142 

8.  More  Serious  Controversy  with  Electric  Railway  Companies,  .         143 

9.  Cases — Central    Union  Telephone  Co.  v.   Sprague   Electric   Railway 

and  Motor  Co.,     ...........         143 

10.  East  Tennessee  Telephone  Co.  v.  Chattanooga   Electric   Street  Rail- 

way Co.  and  Another  Case, 144 

11.  Rocky  Mountain  Bell  Telephone  Co.  v.  Salt  Lake  City  Railway  Co.,      144 

12.  Wisconsin    Telephone    Co.   v.    Eau   Claire    Street   Railway   Co.   and 

Sprague  Electric  Railway  and  Motor  Co.,    ......    145 


CONTENTS.  XI 

PAGE 

13.  Hudson  River  Telephone  Co.  v.  Watervliet   Turnpike    and    Railroad 

Co., 146 

14.  The  Same  Continued, H7 

15.  East  Tennessee  Telephone  Co.  v.  Knoxville  Street  Railway  Co.,  .    149 

16.  Cumberland  Telephone  Co.  v.  United  Electric  Railway  Co.,    .         .         150 

17.  City  and  Suburban  Teleg.  Assoc,  v.  Cincinnati   Inclined   Plane   Rail- 

way Co., 15* 

18.  Conclusions, ^5^ 

CHAPTER  XV. 

INJURIES    FROM    UNAUTHORIZED    OR    DEFECTIVE    POLES    AND    WIRES. 

1.  Introductory, ^54 

2.  Location  of  the  Poles — Liability  for  Injuries  by  Reason  of,      .         .         154 

3.  The  Same — Another  Case, ^55 

4.  The  Same — Another  View, ^55 

5.  The  Same — Source  and  Extent  of  the  Liability, 156 

6.  The  Same— The  Legislature  May  Modify  the  Rights  of  the   Public  in 

the  Street— Electric  Railway  Poles — Conclusion,         .         .         .         -157 

7.  Wires  Hanging  Too  Low — Liability  for  Injuries,        ....         159 

8.  The  Same — Decisions, ^59 

9.  The  Same  Continued — Guy  Wires, 161 

10.  Wires  Hanging  Too  Low — Contributory  Negligence,    .         .         .         .162 

11.  Defective  Materials,         .......••         164 

12.  Damages  Caused  by  Severe  Storms, 165 

13.  Dangerous  Currents, ^"O 

Table  of  Cases, 169 

IvDEX, 179 


Electric  Wires  in  Streets  and  Higliways. 


CHAPTER  I. 

INTRODUCTORY. 

§  1.  Growing  Importance  of  the  Subject. — Roads  were  opened 
for  communication  as  well  as  travel,  and  when  the  method  of 
communication  by  electric  telegraph  was  adopted  it  naturally- 
sought  the  public  roads,  and  Hnes  of  telegraph  were  stretched 
along  the  turnpikes  and  railroads.  Statutes  were  passed  giving 
permission  to  use  the  public  rights  in  the  highway.  There  was 
little,  if  any,  damage  to  private  interests  and  there  was  no  great 
litigation  in  regard  to  it.  Scott  &  Jarnagin,  in  their  work  on 
telegraphs  written  in  1868,  refer  to  the  subject  as  a  matter  of  spec- 
ulation rather  than  practical  interest,  and  cite  no  cases.  Within 
a  few  years  past  the  uses  of  electricity  have  greatly  multiplied  ; 
it  has  been  found  that  it  can  be  applied  so  that  the  people  in 
different  parts  of  a  city  and  even  in  different  towns  hundreds  of 
miles  apart  can  talk  with  one  another  without  leaving  their 
houses ;  it  is  used  for  furnishing  light  to  the  streets  and  houses 
and  to  provide  power  for  turning  machinery  and  for  moving 
vehicles ;  for  all  these  uses  the  electricity  must  be  distributed 
from  central  sources  and  carried  by  wires  throughout  the  city 
and  across  the  country.  The  wires  have  therefore  been  greatly 
multiplied,  the  streets  of  the  cities  are  filled  with  them,  and  they 
line  all  the  chief  highways  of  the  country.  They  have  become 
obnoxious  to  the  owners  of  adjoining  property ;  the  poles  are 
ugly  and  sometimes  obstruct  the  street.  The  wires  are  a  se- 
rious obstruction  to  access  to  city  buildings  in  case  of  fire.  Some 
of  them  carry  in  themselves  dangerous  and  even  deadly  currents, 
and  when  there  are  wires  of  different  kinds  for  various  purposes, 
one  current  is  found  to  interfere  with  the  free  use  of  another. 
For  all  these  reasons  there  are  opposition  and  contest  which  have 
led  to  litigation.  The  wires,  however,  are  too  useful  to  be 
E.  W.— 2  (I) 


2  ELECTRIC   WIRES  [§  2. 

dispensed  with  ;  the  purposes  they  subserve  are  public  purposes 
and  the  conveniences  they  furnish  are  enjoyed  by  many.  The  use 
of  them  is  likely  to  increase  rather  than  diminish.  Their  pur- 
poses, if  not  the  same  as  those  of  the  highway  itself,  are  closely 
allied  to  them,  and  it  is  only  by  using  the  highways  that  they 
can  fully  serve  their  purposes.  Their  relations,  therefore,  to  the 
public  and  private  rights  in  the  highways  must  be  defined,  con- 
flicting rights  must  be  adjusted  and  the  manner  of  using  the 
streets  must  be  controlled. 

The  questions  involved  depend,  of  course,  upon  the  principles 
governing  the  use  of  streets  and  highways  and  the  powers  and 
duties  of  municipal  corporations,  and  have  been  considered  in  the 
text-books  upon  these  subjects ;  but  in  view  of  the  recent  decis- 
ions relating  especially  to  the  use  of  electric  wires  and  of  the 
increasing  importance  of  the  subject,  it  may  be  well  to  consider 
these  uses  of  the  streets  by  themselves. 

§  2.  The  Legal  Relations  of  the  Wires  to  the  Highways. — The  legal 
relation  of  these  lines  of  wire  to  the  streets  and  highways  de- 
pends to  a  great  extent  upon  the  question  whether  such  use 
serves  the  purposes  for  which  the  roads  are  opened  and  also  upon 
the  question  whether  they  interfere  with  the  uses  to  which  the 
streets  have  been  commonly  put. 

The  rights  in  the  streets  are  both  public  and  private.  They 
are  opened  for  public  use,  and  yet  the  title  to  the  land  subject  to 
this  use  remains  in  private  owners,  or  else  the  owners  of  adjoin- 
ing lands  have  a  right  of  property  in  having  the  road  kept  as  a 
road  for  the  public  purposes  to  which  it  is  devoted. 

The  discussion,  therefore,  involves  the  consideration  of  what  are 
the  proper  uses  of  the  street  and  how  far  these  are  subserved  by 
the  various  uses  of  electric  wires,  and  also  what  are  the  public  or 
private  rights  with  respect  to  the  streets  and  to  the  use  of  them 
for  these  purposes. 

With  respect  to  the  public,  the  first  question  is  whether  any 
special  authority  is  required  for  making  such  use  of  the  streets, 
and,  if  so,  whence  the  permission  is  derived  and  how  it  may 
be  obtained.  Then,  supposing  the  lines  to  be  put  up  under  law- 
ful authority,  there  will  remain  questions  in  regard  to  the  regula- 
tions under  which  the  privileges  may  be  exercised  and  the 
liability  for  interfering  with  the  other  uses  of  the  highway. 

With  respect  to  private  rights,  the  subject  involves  the 
discussion  of  the  rights  of  the  owners  of  adjoining  land  in  the 
streets,  both  their  rights  of  access  and  passage,  and  their  title  to 


§  3. J  IN   STREETS   AND    HIGHWAYS.  3 

the  land  itself  and  also  the  liability  for  injuries  received  by 
individuals  inconsequence  of  unlawful  obstruction  of  the  streets 
or  by  reason  of  negligence  in  the  construction  and  use  of  these 
lines  of  wires  for  the  transmission  of  electricity. 

Other  questions  affecting  private  rights  are  those  involved  in 
the  controversies  between  persons  or  companies  using  the  same 
streets  for  parallel  lines  of  wire  for  different  applications  of  elec- 
trical energy  and  between  persons  or  companies  using  electric 
wires  and  those  having  special  rights  or  privileges  in  the  same 
highway,  as,  for  instance,  a  railroad  or  a  turnpike  company. 

§  3.  Arrangement  and  Division  of  the  Subject. — The  discussion, 
therefore,  may  be  arranged  and  divided  in  general  terms  some- 
what as  follows  : 

I.  Public  Rights. — The  authority  by  and  under  which  the 
streets  and  highways  may  be  used  for  poles  and  wires. 

Under  this  the  questions  arising  will  be  such  as  these: 

Are  the  public  rights  in  the  streets  vested  in  the  municipal 
governments  or  in  the  legislature  ?  If  the  power  to  permit  a 
new  use  of  the  streets  must  come  from  the  legislature,  is  it 
included  in  the  ordinary  powers  delegated  to  municipal  corpo- 
rations, and,  in  particular,  are  the  telegraph  and  telephone,  the 
electric  light  and  power  and  the  electric  railway,  uses  for  which 
cities  and  towns  may  grant  the  privilege  of  stringing  wires  or 
laying  cables  in  the  public  streets?  And,  again,  if  the  power  to 
use  the  streets  be  given  by  the  legislature  subject  to  municipal 
consent,  what  conditions  may  be  imposed  by  the  city  and  what 
regulations  maybe  made  with  respect  to  the  use  of  the  franchise? 
Under  this  will  come  questions  as  to  the  power  to  impose  license 
fees  or  taxes  or  to  exact  compensation  for  the  privilege  of  using 
the  streets,  and  it  will  be  found  interesting  and  important  to 
consider  whether  wires  once  put  up  under  municipal  license  may- 
be removed  by  the  city  authorities,  and  whether  and  on  what 
terms  they  may  be  removed  by  the  legislature  itself.  May  the 
wires  be  ordered  to  be  taken  down  from  the  poles  and  put  under 
ground  ;  and,  if  so,  by  whose  authority  and  on  what  terms  may  the 
companies  themselves  insist  on  using  subways  instead  of  poles,  and 
how  shall  the  use  of  subways  for  various  kinds  of  wires  be  regu- 
lated ?  These  and  similar  questions  are  suggested  ;  but  to  answer 
them  properly  would  involve  the  discussion  of  the  whole  subject 
of  municipal  and  legislative  franchises,  and  I  cannot  attempt  to 
do  more  than  refer  to  the  general  principles  and  leading  cases 
on  the  subject  at  large  and  then  state  what  has  been  decided 


4  ELECTRIC   WIRES  V§  3* 

with  special  reference  to  electric  wires.  These  cases  are  not  very 
numerous,  and  it  is  better  in  the  present  stage  of  development  of 
this  branch  of  the  law  to  let  the  cases  speak  for  themselves  than 
to  attempt  to  lay  down  rules. 

Another  matter  involving  public  rights  in  the  highways  is  the 
privilege  secured  by  act  of  Congress  to  all  telegraph  companies 
ahke  to  use  the  post  roads  of  the  United  States.  This  has  some 
bearing  upon  State  and  municipal  control,  but  it  is  more  fre- 
quently discussed  in  connection  with  lines  along  railroads,  and 
may  be  considered  in  connection  with  the  mutual  rights  of  tele- 
graphs and  railroads. 

2.  Private  Rights. — The  relation  of  the  street  to  the  owner 
of  abutting  land  and  his  rights  in  the  street. 

Do  the  several  uses  of  the  electric  wires  in  the  streets  affect 
private  rights,  either  as  imposing  a  new  servitude  upon  the  land 
or  as  infringing  the  owner's  rights  in  the  street,  so  that  compen- 
sation must  be  made? 

This  involves  a  discussion  of  the  interesting  and  difificult  ques- 
tion, what  the  rights  of  the  abutting  owner  in  the  street  are  and 
what  public  uses  may  be  made  of  the  street  without  affecting 
those  rights  of  the  adjoining  owner.  The  courts  hold  different 
views  of  the  proper  uses  of  the  streets  and  as  to  what  amounts 
to  a  perversion  of  the  purpose  for  which  the  land  is  taken.  Dis- 
tinctions are  made  between  cases  in  which  the  fee  of  the  street  is 
in  the  public  and  those  in  which  the  public  have  only  a  right  of 
way.  Doubt  has  been  thrown  by  recent  cases  on  the  soundness 
of  this  distinction,  and  the  courts  are  beginning  to  recognize 
clearly  the  right  of  access  and  light  and  air  and  other  privileges 
of  adjacency  to  a  street  as  substantial  rights  of  property. 

The  questions  of  the  proper  uses  of  the  street,  of  the  owner- 
ship of  the  soil  and  the  rights  of  adjacency  are  all  involved  in  the 
discussion,  and  we  cannot  attempt  to  decide  whether  one  or  all 
are  sufficient  to  give  a  firm  basis  of  principle  on  which  to  decide 
whether  any  or  what  rights  of  the  landowners  are  affected  by 
the  use  of  the  streets  for  electric  wires  for  the  various  purposes 
to  which  they  are  or  may  be  applied.  The  subject  belongs  to 
the  broader  topic  of  eminent  domain  with  respect  to  streets  and 
highways,  and  is  fully  considered  in  the  standard  text-books. 
We  need  only  refer  to  the  general  principles  and  then  we  may 
take  up  in  detail  the  various  uses  for  electric  wires :  First,  the 
telegraph  and  telephone  ;  secondly,  the  electric  light ;  thirdly,  elec- 
tric  power,    and,    fourthly,   the    electric   railway.     In  .discussing 


§3-]  IN   STREETS   AND   HIGHWAYS.  5 

these  it  will  be  necessary  to  refer  to  the  decisions  with  respect  to 
other  and  analogous  uses  of  the  streets  and  roads,  as,  for  instance, 
for  gas  and  oil  pipes,  for  steam  railroads,  horse  railroads  and  ele- 
vated railroads,  for  dummy  engines  and  for  cable  railways,  and  it 
will  be  useful  to  compare  the  decisions  with  respect  to  the  differ- 
ent kinds  of  electric  wires  with  one  another  with  a  view  to 
reaching  a  common  and  stable  basis  of  decision  with  respect  to 
all  such  uses  of  the  streets. 

Assuming  it  to  be  settled  that  private  rights  are  affected,  the 
question  will  then  arise.  How  are  proceedings  to  be  taken  to  sub- 
ject them  to  public  use  on  making  due  compensation  ?  and  we 
must,  therefore,  examine  such  cases  as  may  be  found  on  proceed- 
ings to  condemn  lands  or  rights  of  property  for  laying  out  lines 
of  telegraph  and  telephone,  electric  light  and  other  electric 
wires. 

In  connection  with  this  we  may  consider  the  right  to  construct 
a  telegraph  line  on  the  right  of  way  of  a  railway  company  and 
whether  such  a  right  may  lawfully  be  made  exclusive.  This  in- 
volves the  act  of  Congress  with  respect  to  post  roads,  and  this 
statute  itself  has  been  the  subject  of  many  interesting  decisions 
with  respect  not  only  to  contracts  with  railroad  companies  but 
also  to  the  rights  of  States  and  municipalities  to  interfere  with 
this  instrument  of  commerce  between  the  States. 

Another  question  involving  private  rights  of  property  is  that 
involved  in  the  fact  that  the  use  of  the  streets  for  one  kind  of 
current  of  electricity  may  interfere  with  the  use  of  them  for  an- 
other, and  there  are  a  good  many  recent  decisions  arising  out  of 
the  complaints  of  the  telephone  companies  that  their  business  is 
interfered  with  and  their  property  injured  by  the  more  powerful 
currents  used    for  the  electric  light  and  the  electric  railway. 

There  are  other  questions  supplemental  or  incidental  which  will 
require  some  attention  and  especially  the  liability  for  injuries 
sustained  by  reason  of  unlawful  or  unnecessary  obstruction  of 
the  streets,  or  by  reason  of  negligence  in  constructing  or  operat- 
ing lines  of  electric  wires.  This  will  involve  the  question  what 
precautions  the  companies  must  take  against  violent  storms 
which  may  throw  down  their  poles,  and  to  what  extent  they  are 
bound  to  keep  dangerous  currents  of  electricity  from  injuring 
persons  and  property. 

It  is,  as  I  have  said,  too  early  in  the  development  of  the  law  in 
its  application  to  these  subjects  to  do  anything  more  than  to  re- 
fer to  general  principles  and  to  collect  the  cases  in  which  they 


6  ELECTRIC  WIRES  [§  3. 

have  been  applied  to  the  use  of  these  wires.  I  have,  therefore, 
stated  the  cases  somewhat  in  detail  so  that  these  pages  may  at 
least  furnish  the  means  of  ascertaining  what  has  been  decided  on 
these  subjects  up  to  the  present  time,  even  if  they  do  not  show 
that  any  very  definite  basis  of  decision  has  yet  been  agreed 
upon. 


§  3-]  IN   STREETS  AND   HIGHWAYS. 


CHAPTER  II. 

BY  WHAT  AUTHORITY  THE  STREETS  MAY  BE  USED  FOR  ELECTRIC 

WIRES. 

§  1.  Introductory. — The  question  of  the  authority  to  use  the 
streets  for  electric  wires  is,  of  course,  a  part  of  the  broader 
question  of  control  of  the  streets,  and  the  right  to  grant  special 
privileges  with  respect  to  particular  public  uses.  It  involves  the 
relations  of  the  legislature  and  the  municipal  corporation  to  the 
streets,  the  extent  of  the  powers  delegated  to  the  local  authori- 
ties, and  the  question  what  are  the  proper  uses  of  a  public  street 
or  highway.  All  these  questions  have  been  fully  considered  in 
many  elaborate  works  on  municipal  corporations,  eminent  domain 
and  streets  and  highways. 

§  2.  Analogies  and  General  Principles. — It  is  only  necessary  \n 
dealing  with  the  use  of  the  streets  for  electric  wires  to  state  briefly 
the  general  principles  bearing  upon  these  subjects,  and  to  refer  to 
the  standard  text-books  and  a  few  important  cases.  The  conclu- 
sions that  have  already  been  reached  with  respect  to  street  railroads 
or  gas  pipes  in  streets  may  be  used  by  way  of  analogy  or  dis- 
tinction in  considering  the  electric  railway,  the  telegraph  and  the 
electric  light,  and  we  may  devote  our  attention  especially  to  the 
cases  decided  with  respect  to  these  uses  of  the  streets  for  the 
transmission  of  electricity. 

In  considering  the  question  by  whose  authority  permission 
may  be  granted,  whether  it  may  be  given  by  the  municipal  or 
other  local  government,  or  must  come  from  the  legislature,  we 
may  assume  that  the  same  principles  apply  to  the  use  of  electric 
wires  as  to  other  uses  of  the  streets. 

§  3.  The  Power  Over  the  Streets  Belongs  to  the  Legislature.— It  is 
well  settled  that  the  use  of  the  streets  belongs  to  the  public  at 
large  as  distinguished  from  the  municipality,  that  the  legislature 
represents  the  public,  and  that  the  municipality  has  no  control 
over  the  streets  except  what  is  given  to  it  by  the  legislature, 
either  expressly  or  by  implication.' 

The  legislature  has  (in  the  absence  of  constitutional  restraint, 
and  subject  to  the  property  rights  and  easements  of  the  abutting 

J  State  Hoboken  Land  Imp.  Co.,  Case  of  the  Phila.  &  Trenton  R.  R. 
pros.,   V.   Hoboken,   35    N.    J.  L.  208;     Co.,  6  Whart.  25. 


8  ELECTRIC   WIRES  [§  4. 

owner)  full  and  paramount  authority  over  all  public  ways  and 
public  places.' 

From  this  it  follows  that  the  authority  of  municipalities  over 
streets  and  the  uses  to  which  they  may  be  put  depends  entirely 
upon  their  charters  or  the  legislative  enactments  applicable  to 
them.' 

"The  public  easement  in  the  highways,"  says  Mr.  Justice 
Magie,  of  New  Jersey,  "is  vested  in  the  public,  and  can  be 
divested  by  nothing  short  of  an  exercise  of  sovereign  power. 
The  legislature,  representing  the  public,  may  release  the  public 
right  by  vacating  the  highway,  may  modify  the  public  use  by 
granting  a  right  to  use  the  highway  for  a  horse  railroad,  or  may 
restrict  the  public  use  by  granting  a  right  to  erect  poles  and 
other  obstructions  in  the  highway.  What  the  legislature  can 
thus  do,  it  may  delegate  authority  to  do.  .  .  .  No  reason 
appears  why  all  such  authority  possessed  by  the  legislature 
may  not  be  thus  delegated.  But  the  delegation  of  such  power 
must  plainly  appear  either  by  express  grant  or  by  necessary 
implication."^ 

§  4.  Power  of  Municipality  Is  Only  What  Is  Delegated. — The  extent, 
therefore,  of  the  power  of  the  municipality  depends  upon  the 
breadth  of  the  charter  or  statutes  authorizing  municipal  action. 
The  legislature  may  no  doubt  delegate  to  the  municipal  govern- 
ment absolute  control  over  the  streets  with  express  power  to 
dispose  of  the  public  rights  therein  for  public  purposes,  and  the 
question  whether  in  any  particular  case  the  local  authorities  have 
power  to  grant  a  franchise  must  be  decided  by  reference  to  the 
local  statutes.* 

^  2  Dill.  Mun.  Corp.,  4th  ed.,  §  656,  Works  Co.  v.  Consumers  Water   Co., 

683,  and  cases  cited.  44   N.   J.    Eq.   427-432;    State  v.  Mil- 

^  2  Dill.  Mun.  Corp.  §  680.  waukee  Gas  Light  Co.,  29  Wis.  454. 

^Domestic    Tel.    &  Teleph.   Co.  v.  See,  however,  2  Dill.  Mun.  Corp.,  4th 

Newark,  49   N.  J.   L.  344-346   (1887).  ed.,  §  693;    Norwich  Gas  Light  Co.  v. 

See  also  New  Orleans  Gas  Co.  v.  Lou-  Norwich  City  Gas  Light  Co.,  28  Conn, 

isiana  Light  Co.  115  U.  S.  650;  Louis-  19,  where  it  was  held  not  only  that  the 

ville  Gas  Co.  v.  Citizens'  Gas  Co,  115  city  had  no  power  to  grant  an  exclu- 

U.  S.  683;  New  Orleans  Water  Works  sive   property   interest  in  the   streets, 

Co.  V.  Rivers,  115  U.  S.  674;   Citizens'  but  also  that  such  a  grant  by  the  State 

Water   Co.    v.   Bridgeport    Hydraulic  to  a  gas  company  for  the  purpose  of 

Co.,  55  Conn.  1 ;  East  Portland  v.  Mul-  laying   pipes    was   void   as  a  monop- 

tomah,  6  Oreg.  62;  2  Dill.  Mun.  Corp.  oly. 

4695-6;  Atlantic  City  Water  Works  V.  *2   Dill.    Mun.    Corp.,    4th     ed.,     § 

Atlantic   City,  39  N.  J.  Eq.  366,  374;  680,    §    719,   and    notes    citing    many 

modified     in     Atlantic     City     Water  cases. 


§  6.]  IN   STREETS   AND   HIGHWAYS.  9 

§  5.  Extent  and  Limits  of  Ordinary  Powers  of  Municipality. — Their 
power  is  strictly  confined  to  the  public  rights ;  they  cannot 
exercise  the  power  of  eminent  domain  and,  therefore,  they  can- 
not do  anything  which  involves  the  taking  of  private  prop- 
erty for  public  uses,  and  for  this  reason  a  full  discussion  of 
the  extent  of  the  power  of  the  municipality  involves  a  discus- 
sion of  the  question  whether  the  proposed  use  of  the  street  is 
one  that  imposes  a  new  burden  on  the  land  or  affects  in  any 
way  the  property  rights  of  owners  of  adjoining  land ;  and  this 
question  must  be  considered  by  itself  and  at  some  length  when 
we  come  to  deal  with  the  private  rights  affected  by  the  tele- 
graph and  electric  railway  and  other  lines  of  wires  for  electric 
purposes. 

§  6.  The  Same  Continued ;  Municipalities  Cannot  Grant  Exclusive 
Franchises. — It  is  well  settled  that  municipalities  have  not  the 
power  to  grant  an  exclusive  franchise  or  permanent  privilege,' 
and  it  is  no  doubt  because  such  permissions  to  use  the  streets 
must,  if  they  are  to  be  valuable,  be  to  a  certain  extent  exclusive, 
that  special  provision  is  made  by  statute  for  conferring  legisla- 
tive authority  upon  corporations  organized  for  the  purpose  of 
exercising  such  franchises. 

The  legislature,  unless  specially  limited  by  the  constitution, 
has  the  right  to  grant  an  exclusive,  indefinite  and  irrevocable 
franchise  for  the  use  of  the  streets,"  although  such  a  grant  must 
be  made  in  explicit  language,  and  will  not  be  implied  f  but  with- 

^  Norwich  Gas  Co.  v.  Norwich  City  Co.,  115  U.  S.  683  ;  New  Orleans  W-ater 
Gas  Co.,  25  Conn.  19;  Minturn  v.  Works  Co.  v.  Rivers,  115  U.  S.  674; 
Larue,  23  How.  (U.  S.)  435  ;  Wright  v.  Citizens'  Water  Co.  v.  Bridgeport  Hy- 
Nagle,  loi  U.  S.  791  ;  Jackson  County  draulic  Co.,  55  Conn,  i ;  State  v.  Mil- 
Horse  Railroad  Co.  v.  Rapid  Transit  waukee  Gaslight  Co.,  29  Wis.  454;  At- 
Co.,  24  Fed.  Rep.  306;  Saginaw  Gas-  lantic  City  Water  Works  Co.  v.  At- 
light  Co.  V.  City  of  Saginaw,  28  Fed.  lantic  City,  39  N.  J.  Eq.  367.  See, 
Rep.  529;  State  v.  Cincinnati  Gas-  however,  2  Dill.  Mun.  Corp.,  4th  ed.,  § 
light  and  Coke  Co.,  18  Ohio  St.  262;  693,  and  Norwich  Gaslight  Co.  v.  Nor- 
Stein  V.  Bienville  Water  Supply  wich  City  Gas  Co.,  25  Conn.  19  (18^6), 
Co.,  34  Fed.  Rep.  145,  v/ith  note.  and  as  to  the  effect  of  express  legisla- 

Dillon  Mun.  Corp.,  4th  ed.,  §§  362,  tive    warrant,     Atlantic    City    Water 

395,  and  notes  citing  cases.     See  also  Works   Co.  v.  Atlantic  City,  48  N.  J. 

note  3,  infra.  L.  379. 

^  2   Dill.  Mun.  Corp.,  4th  ed.,  §§  691,  »  2  Dill.  Mun.  Corp.,  4th  ed.,  §695  ;  i 

692,  693,  694,  695,  696  and  notes;  Elliott  Ibid.,    §    362;     People    v.    Benson,   30 

on  Streets,  p.  332  ;  Cooley  Const.  Lim.,  Barb.  24  ;  Cooley  Const.  Lim.,  6th  ed., 

6th  ed.,  p.  342 ;  New  Orleans  Gas  Co.  250;   Milhau   v.   Sharp,    17   Barb.   435 

V.  Louisiana  Light  Co.,  115   U.  S.  650;  (1854);  S.  C.  28  Barb.  22S;  27  N.   Y. 

Louisville    Gas    Co.  v.   Citizens    Gas  611. 


10  ELECTRIC   WIRES  [§  6. 

out  express  legislative  authority,  no  municipality  has  the  right  to 
grant  an  exclusive,  indefinite  franchise,'  and  it  has  been  held  in 
many  cases  that  a  city  has  no  right  to  grant  an  exclusive  right 
even  for  a  limited  time.^ 

Where  the  constitution,  as  it  does  in  many  States,  prohibits 
the  legislature  from  passing  any  local  or  special  law  conferring 
exclusive  privileges  or  franchises,  it  would  seem  that  a  munici- 
pality, acting  under  a  general  law,  would  not  have  the  power  to 
grant  an  exclusive  franchise,  for  if  it  did  the  legislature  could 
accomplish  through  a  corporation  created  by  it  what  it  could  not 
do  itself  directly/ 

In  Grand  Rapids  Electric  Tclcg.  Co.  v.  Grand  Rapids  Edison 
etc.  Co.,^  it  appeared  that  a  city  having  only  a  general  power  to 
light  streets,  adopted  an  ordinance  granting  to  an  electric  light 
company  the  exclusive  right  to  use  the  streets  for  fifteen 
years.  It  was  held  that  the  grant  was  void  for  want  of  power. 
Jackson,  J.,  insisted  that  upon  principle  and  under  the  decis- 
ions, the  authority  to  grant  an  exclusive  franchise  involves  the 
exercise  of  the  whole  sovereign  power,  and  that  if  the  city  has 
power  to  make  an  exclusive  grant  for  fifteen  years,  it  has  the 
power  to  make  such  a  grant  for  an  indefinite  time,  and  if  it 
has  not  power  to  make  the  grant  for  the  longer  time  it  has 
not  the  power  to  make  it  for  the  shorter,  "  It  requires  the 
whole  exclusive  power  and  control  to  grant  either  the  one  or 
the  other." 

The  question  resolves  itself  finally  into  a  question  of  the  ex- 
tent of  the  power  granted  to  the  municipality  by  the  charter  or 
other  law  in  any  particular  case,  and  since  the  same  question  is 
involved  with  respect  to  many  other  franchises,  it  cannot  be 
discussed  in  detail  without  going  beyond  the  cases  on  electric 
wires.^ 

*  See  notes  2  and  3,  page  8,  and  also  Rep.  659;  State  v.  Cincinnati   Gas  and 

Grand   Rapids   Electric  Teleg.  Co.  v.  Coke  Co.,  18  Ohio  St.  262  (1868) ;  Cin- 

Grand  Rapids  Edison  etc.  Co.,  33  Fed.  cinnati   Street   R.  R.  Co.  v.  Smith,  29 

Rep.  659;    Milhau  V.  Sharp,   2.7  N.  Y.  Ohio  St.  291-308. 

611;     State   of    New    York   v.    Davis,  ^  See   on    the   subject   of    exclusive 

Mayor  of  New  York,  3  Duer  119;    St.  franchise  and   general    laws,  Atlantic 

Louis  A.  &    r.  H.  R.  R.  Co.  v.  Belle-  City  Water  Works  Co.  v.  Consumers 

ville,  20  111.  App.  580;  People  Pass.  Ry.  Water  Co.,  44  N.  J.  Eq.  427. 

Co.   V.  Memphis,  16  S.  W.    Rep.   973  *  33    Fed.    Rep.   659;    U.   S.   Circuit 

Tenn.  (1875).  Court  W.  D.  Michigan  (iS 


^  Grand  Rapids  Elect.  Teleg.  Co.  v.        *  We    may    refer    to    some    of    the 
Grand  Rapids  Edison  etc.  Co.,  33  Fed.     cases    on    the     subject    of     exclusive 


•] 


IN   STREETS   AND    HIGHWAYS. 


11 


§  7.  The  Same:  Special  Importance  of  the  Subject  with  Reference  to 
Electric  Wires. — The  question,  however,  is  of  practical  importance 
with  respect  to  electric  lighting  and  will  become  more  important 
than  it  has  been  with  respect  to  the  telegraph  and  telephone 
when  an  indefinite  number  of  wires  are  no  longer  allowed  to  be 
strung  over  the  streets,  and  all  must  be  placed  in  subways  of 
limited  capacity.  This  subject,  however,  must  be  reserved  for  a 
separate  chapter  (Chapter  XIV). 

§  8.  Ordinary  Powers  of  Municipalities  with  Sespect  to  the  Streets. — 
Under  the  powers  ordinarily  granted  to  municipal  corporations 
they  have  the  care,  supervision  and  control  of  the  streets,  the 
power  to  open,  grade  and  regulate,  to  alter,  and  to  vacate  them. 
Under  the  power  to  grade,  it  has  been  held  that  they  may  take 
away  the  access  to  adjoining  property  and  destroy  the  value 
of  it  without  making  compensation.  And  under  the  power 
to  grade  and  vacate,  it  has  been  held  that  on  making  compensa- 
tion they  have  the  power  to  raise  the  level  of  a  street  and  build 
abutments  of  a  bridge  for  the  purpose  of  crossing  over  a  railroad 
track.' 

They  have  the  power  to  remove  obstructions,  and   even   to 


franchises  granted  by  municipal  au- 
thority. 

The  power  of  municipal  corpora- 
tion to  grant  an  exclusive  franchise 
and  create  a  monopoly  is  discussed  in 
36  Am.  &  Eng.  R,  R,  Cas.  116,  note, 
where  the  American  decisions  are  col- 
lected. See  also  2  Dill.  Mun.  Corp.,  § 
693-696,  and  notes  above  referred  to. 

The  validity  of  grants  by  munici- 
palities of  the  use  of  the  streets  is  dis- 
cussed in  an  article  by  W.  W.  Thorn- 
ton in  41  Alb.  Law  Jour.  104. 

In  Citizens  St.  Ry.  Co.  v.  Jones,  34 
Fed.  Rep.  579,  a  grant  by  a  city  of  ex- 
clusive rights  to  all  the  streets  for 
ninety  years  was  held  not  to  confer 
such  a  right  in  any  particular  street 
where  the  grant  had  not  been  acted 
upon  and  the  right,  had  not  been 
acquired  by  use,  although  the  city 
was  specially  authorized  by  statute 
to  contract  for  providing  the  city 
with  railroads  and  conferring  for  the 
time  agreed  upon  an  exclusive  fran- 
chise. 


In  Indianapolis  Cable  Street  Ry. 
Co.  V.  Citizens  St.  R.  Co.  (Ind.),  8 
L.  R.  A.  539;  24  N.  E.  Rep.  1054,  it 
was  held  that  a  grant  to  use  all  the 
streets  of  a  city  for  a  cable  street  rail- 
road was  not  to  be  construed  as  exclu- 
sive until  actually  acted  upon  in  good 
faith  by  the  building  of  a  cable  road 
and  then  only  so  far  as  the  proposed 
system  required  it  for  actual  use.  For 
a  collection  of  authorities  on  Munici- 
pal Control  of  Streets,  see  Daly  v.  Ga. 
So.  &  Fla.  R.  R.  Co.,  26  Am.  &  Eng. 
R.  Cas.  27,  n. ;  Iron  Mountain  R.  R. 
Co.  V.  Bingham,  4  L.  R.  A.  622,  n. 
See  also  Appeal  of  Meadville  Fuel  Gas 
Co.,  4  Atl.  Rep.  733  (Pa.  Sup.  Ct.  May 
31,  1SS6);  New  Orleans  City  R.  R.  Co. 
V.  Crescent  City  R.  R.  Co.,  12  Fed. 
Rep.  308;  Davenport  V.  Kleinschmidt 
(Sup.  Ct.  Montana  1SS7),  13  Pac.  Rep. 
249. 

'  See  Reed  v.  Camden,  53  N.  J.  L. 
322,  where,  however,  there  was  also  a 
statute  specially  authorizing  cities  to 
make    contracts    with    railroad   com- 


12  ELECTRIC   WIRES  [§  8. 

authorize  certain  obstructions  which  are  commonly  allowed  in 
the  streets  by  custom,  or  are  incidental  to  the  ordinary  uses 
of  a  street.  They  may,  for  example,  permit  a  line  of  shade 
trees  to  remain  or  to  be  planted  along  the  foot  path,  or 
even  along  the  middle  of  the  street.'  They  may  permit  or 
authorize  hitching  posts  and  drinking  fountains  as  incidents  to 
travel. 

It  is  very  common  for  them  to  permit  awnings  to  hang  over 
the  sidewalks,  and  posts  for  their  support  to  stand  along  the 
edge  of  the  street.  Although  if  the  awning  is  in  fact  a  public 
nuisance,  it  has  been  held  that  the  common  council  may  abate  it, 
even  though  a  previous  council  had  given  permission  to  main- 
tain it,  and  the  court  expressed  a  doubt  whether  the  council 
would  have  a  right  to  authorize  the  construction  of  such  an 
awning  as  was  described  in  the  case.^ 

It  is  generally  admitted  that  cities  have  the  right  to  authorize 
the  construction  of  sewers  and  drains,'  although  the  sewers  are 
used  for  draining  private  houses  as  well  as  the  streets,  and  the 
former  use  has  nothing  to  do  with  public  travel.  They  may  main- 
tain wells  and  cisterns'  in  the  streets  for  public  purposes, 
and  may  lay  pipes  there  for  a  public  water  supply.^  So  also 
"  lighting  cities  is  so  necessary,"  says  Judge  Dillon,  "  for  the  safe- 
ty and  convenience  of  the  inhabitants  that  municipal  author- 
ities are  usually  given  more  or  less  extensive  powers  in  respect 
to  it,'"     Power  to  light  the  streets,  of  course,  involves  power  to 

panics  whereby  the  companies  might  689   (542);  Traphagen  v.   Jersey   City, 

"  relocate,   change   or    elevate  "    their  29  N.  J.  L.  206,  246;  Michener  v.  Phila- 

roads.  delphia,  18    Pa.   St.  535 ;    McKevitt   v. 

1  In  Massachusetts  the  trees  by  stat-  Hoboken,  45  N.  J.  L.  402;  Elliott  on 
ute  belong  to  the  adjoining  owner  Streets,  p.  360;  Lewis  on  Em.  Dom.,  § 
and  can  only  be  cut  down  by  order  of  127. 

the    mayor    and    council ;    White    v  *  Lostutter  v.  City  of   Aurora,    Indi- 

Godfrey,  97  Mass.  472;   Bliss  v.  Ball,  ana  Supreme  Court,  Jan.  8,  1891,  12  L. 

99  Mass.  597.  R.  A.  259;    West   v.    Bancroft,  32   Vt. 

2  Farrell  v.  Mayor  etc.  of  New  York  367 ;  although  this  not  undisputed,  Du- 
N.  Y.  Supreme  Court,  Special  term,  buque  v.  Maloney,  9  Iowa  450.  See  2 
Dec.  18,  18S8;  Lawrence,  J.,  5  N.  Y.  Dill.  Mun.  Corp.  4th  ed.,  §  690,  and 
Supp.  672,  referring  to  Ely  v.  Camp-  note  citing  cases,  and  Elliott  on  Roads 
bell,  59  How.  Pr.  333 ;  People  v.  Mayor  etc.,  305-308  with  notes. 

etc.,  59  How.  Pr.  277,  relating  to  stalls        ^2  Dill.  Mun.  Corp.,  4th  ed.,    §  697; 
and  market  wagons  in  the  streets  and     Lewis  Em.  Dom.,  §  128. 
denying  the    power  of    the    common        ^  2  Dill.  Mun.  Corp.,  4th.  ed.,  §  691-2; 
council    to   authorize    permanent   ob-     State  v.  Cine.   Gas  Light  &  C.  Co.,  18 
structions.  Ohio  St.   262  (1868);   Indianapolis  v. 

'  2  Dill.  Mun.  Corp.,  4th  ed.,  §  688,  §  .Indianapolis  Gas    Light   Co.,  66  Ind. 


§  9']  IN   STREETS   AND   HIGHWAYS.  1 3 

set  up  lamp  posts  and  to  lay  down  gas  pipes  for  the  purpose  of 
supplying  the  lamps  with  fuel.  There  has  been  some  question  as 
to  the  right  of  a  city  to  authorize  a  company  to  lay  gas  pipes  in  the 
streets  for  general  use  without  making  compensation  to  the  land- 
owner.^ Yet  the  better  opinion  is  that  this  is  a  legitimate  use  of 
the  streets,  for  which  no  compensation  need  be  made.*  And  it 
is  certain  that  under  the  general  power  to  light  the  city  the  cor- 
poration may  lay  gas  pipes  for  its  own  use  or  authorize  others 
to  lay  them  for  that  purpose. 

Larger  powers  are  given  to  cities  than  to  villages,  and  the  uses 
to  which  city  streets  may  be  put  are  more  numerous  and  various 
than  those  to  which  a  common  highway  may  be  applied  by  the 
township  officers.^  In  all  these  cases  the  authority  of  the  mu- 
nicipality is  confined  to  those  things  which  are  incidental  to  and 
in  furtherance  of  the  power  given  by  statute  to  regulate  and 
control  the  streets. 

§  9.  Question  Whether  the  Various  Electric  Wires  Come  Within 
These  Lines. — Whether  the  various  uses  of  the  electric  wires  come 
within  these  implied  powers  or  not  depends  a  good  deal  on  the 
purpose  for  which  the  wires  are  used,  and  on  the  determination 
of  the  question  whether  or  not  they  are  within  the  proper  uses  of 
a  street  or  constitute  a  new  burden  upon  the  land.  The  discus- 
sion of  this  question  requires  a  separate  consideration  of  the 
several  uses,  and  must  be  reserved  until  later.  The  principles 
which  govern  this  subject  are  discussed  in  works  on  the  powers 
of  municipal  corporations  and  on  streets  and  highways,  and  in 
particular  cases  the  answer  depends  so  much  upon  the  language 

396;  Nelson  v.  Laporte,  33    Ind.   25S ;  (1S53);  Norwich  Gaslight  Co.  v.  Nor- 

Richmond   County    Gas   Light   Co.  v.  wich  City  Gaslight  Co.,  25   Conn.  19 

Middletown,  59  N.  Y.  228.    In  England  (1S56). 

it  has  been  held,  that  the  right  to  lay  ^  Lewis    Em.    Dom.,    §    126,   129;  2 

down  gas  pipes  in  a  highway  can  only  Dill.  Mun.    Corp.,  4th  ed.,  §  691,    note 

be  conferred   by  legislative  authority,  and  cases  cited.     It  has  been  held  that 

Qiieen  v.  Charlesworth,  16  Q^  B.  1012,  pipes  for  conveying  natural  gas  along 

and  the  same  is   true  in    America   of  a  highway    for   the  purposes   of   fuel 

country  highways,  Bloomfield  &  R.  N.  cannot  be  laid   without    compensation 

Gas   L.  Co.  V.  Calkins,  62  N.  Y.  3S6;  to  the  land  owner.     Sterling's  Appeal, 

Sterling's  Appeal,  iii  Pa.  St.  35.    The  iii  Pa.  St.  35 ;  Kincaid  v.  Indiana  Nat. 

authority  must   be    purely   incidental  Gas.  Co.,  121  Ind.  577,  (1S90);  8  L.  R. 

and  in  furtherance  of  the  right  to  con-  A.  602 ;  42  Alb.  L.  J.  208  ;  24  N.  E.  Rep. 

trol    the  streets,    Richmond    Co.  Gas  1066;  8  Ry.  &  Corp.   Law  Jour.  242;  19 

Light  Co.  V.  Middletown,  59N.Y.  228;  Am.  St.  Rep.  113;  Lahr  v.   Metropoli- 

Dodge  V.  Davenport,  57  Iowa  560.  tan  El.  Ry.  Co.,  104  N.  Y.  268,  292. 

1  Milhau    V.    Sharp,    15    Barb.    210  ^  Elliott   on   Streets,  p.  299;  2  Dill, 


14  ELECTRIC   WIRES  [§  10. 

of  charters  or  statutes  that  it  seems  unnecessary  to  examine 
closely  into  the  question  whether,  as  a  matter  of  legal  theory,  a 
municipal  corporation  with  ordinary  powers  has  a  right  to  grant 
permission  to  set  up  telegraph,  telephone  or  electric-light  lines,  or 
to  construct  an  overhead  system  for  furnishing  electric  power  to 
the  street  railway.  As  a  matter  of  fact  provision  is  generally 
made  by  statute  for  obtaining  such  franchises  upon  complying 
with  certain  conditions  and  obtaining  a  designation  of  the  streets 
from  the  local  authorities,  and  the  question  does  not  often  arise 
whether,  without  special  legislative  authority,  a  grant  of  power  to 
use  the  streets  for  such  purposes  may  be  made  by  a  municipal 
corporation. 

§  10.  Powers  of  Cities  to  Grant  the  Privilege  with  Eespect  to  These 
and  Similar  Uses — Steam  and  Horse  Railroads. — It  may  be  well,  how- 
ever, to  refer  to  a  few  cases  in  which  it  has  been  held  that  these 
or  similar  privileges  may  or  may  not  be  conferred  by  municipal 
grant.  It  has  frequently  been  held  that  a  city  cannot  give  per- 
mission to  use  the  streets  for  the  operation  of  an  ordinary  steam 
railroad.'  With  respect  to  horse  railroads  there  is  some  difference 
of  opinion.  Judge  Dillon  says  (§§  717  and  725)  that  the  power 
must  come  from  the  legislature,  but  that  the  ordinary  powers 
are  often  ample  enough  to  authorize  cities  to  allow  the  streets  to 
be  used  for  local  travel  by  means  of  such  railroads,  but  they  can- 
not confer  corporate  franchises  nor  authorize  taking  of  tolls.  It 
was  decided  in  New  York,  in  1856,  that  an  exclusive  right  could 
not  be  thus  granted  ;  but  on  the  question  whether  the  municipal- 
ity might,   by  a  mere  license,  revocable  at   pleasure,  authorize 

Mun.  Corp.,   4th  ed.,  §   688 ;  Lostutter  R.  R.  Co.  v.   J.  C.   &    Hoboken  R.    R. 

V.  City  of  Aurora,    12    L.    R.   A.   259  Co.,  20  N.  J.   Eq.  61;   Morris  &    Essex 

(Indiana  1891,  Elliott,  J.)  R.  R.  Co.  v.  Newark,  10  N.    J.  Eq.  352. 

^  2  Dill.  Mun.  Corp.,  4th  ed.,  §705;  See  also  on  the  distinction  between 
Coolej  Const.  Lim.,  6th  ed.  250,  671 ;  steam  railroads  and  horse  railroads, 
Savannah,  Albany  &  Gulf  R.  R.  Co.  v.  Chapter  X,  (Electric  Railways). 
Shiels,  33  Ga.  6oi  (1863);  State,  Mont-  In  Kentucky  steam  railroads  were 
gomery  v.  Trenton,  36  N.  J.  L.  79;  treated  in  early  cases  as  ordinary  high- 
Chamberlain  V.  Elizabethport  etc.  Co.,  way  uses,  and  a  railroad  company  hav- 
41  N.  J.  Eq.  43;  Reichert  v.  St.  Louis  ing  legislative  authority  to  construct 
&  S.  F.  Ry.  Co.,  51  Ark.  491;  11  S.  W.  a  road,  municipal  consent  was  held  to 
Rep.  696  (18S9);  5  L.  R.  A.  1S3;  38  give  it  authority  to  use  the  streets  of  a 
Am.  cc  Eng.  Cas.  453.  city ;  Louisville  &  Frankfort  R.  R.  Co. 

As   to  the    necessity   for   legislative  v.  Brown,  17  B.  Monroe  763. 
authority  to  lay  a  railroad  in  the  street,         In  Illinois  and  Iowa  it  is   held  that 

see    Pennsylvania    Railroad's  Appeal,  cities   may    authorize    the    laying   of 

115  Pa.  St.  514;  Jersey  City  &  Bergen  steam    railroad  tracks   in  the   streets; 


§11.] 


IN  STREETS  AND   HIGHWAYS. 


15 


persons  to  build  such  a  railroad  the  judges  were  divided.'  The 
New  Jersey  Supreme  Court  said,  in  1872,  that  the  power  had 
never  been  exercised  in  that  State  under  a  mere  grant  of  power 
to  regulate  streets,  and  that  the  attempt  to  assert  it  would  doubt- 
less provoke  the  most  determined  resistance." 

It  is  certainly  true  that  the  right  to  operate  a  horse  railway  is 
a  privilege  giving  the  cars  the  preference  in  the  right  of  way 
over  other  vehicles,  so  that  a  line  of  omnibuses,  for  example, 
will  not  be  allowed  to  run  regularly  upon  the  tracks  to  the  injury 
of  the  business ;'  and  although  it  is  well  settled  that  horse  rail- 
roads are  considered  a  legitimate  use  of  the  streets  for  public  travel, 
it  is  usually  necessary  to  have  special  legislative  authority  to  oper- 
ate a  line  with  all  the  privileges  that  are  generally  required.^ 

§  11.  The  Same:  Electric  Railways. — The  electric  railway,  as  now 
commonly  operated  by  the  overhead  system  of  poles  and  wires, 
differs  from  the  horse  railway,  not  in  the  purpose  of  its  operation 
nor  in  the  mode  of  using  the  street,  but  in  the  fact  that  poles  are 
set  up  at  intervals  along  the  street  and  wires  are  strung  over- 
head for  the  purpose  of  supplying  electricity  to  the  motors.     It 


Chicago  «&  Vincennes  R.  R.  Co.  v. 
People,  92  111.  21;  Milburn  v.  Cedar 
Rapids  R.  R.  Co.,  12  Iowa  246;  Cook  v. 
City  of  Burlington,  30  Iowa  94;  6  Am. 
Rep.  649;  36  Iowa  357.  See  i  Redfield 
on  Railways,  §  76,  and  notes,  6th  ed. 

In  reading  Missouri  cases  it  is  to  be 
observed  that  special  and  plenary- 
power  with  respect  to  railroads  is 
given  by  charter  to  the  city  of  St. 
Louis. 

^  Davis  V.   New  York,  14  N.  Y.  506. 

^  State,  Montgomery  pros.  v.  Tren- 
ton. 36  N.  J.  L.  79,  83. 

^Camden  Horse  R.  R.  Co.  v.  Citi- 
zens' Coach  Co.,  31  N.  J.  Eq.  5215. 

*  Lewis  Em.  Dom.,  §  125;  Atty.  Gen. 
v.  Metrop.  R.  R.  Co.,  125  Mass.  515; 
28  Am.  Rep.  264;  Stanley  v.  Daven- 
port, 54  Iowa  463;  Hinchman  v.  Pater- 
son  Horse  R.  R.  Co.,  17  N,  J.  Eq.  75; 
Jersey  City  &  Bergen  R.  Co.  v.  Jersey 
City  &  Hoboken  Horse  R.  R.  Co.,  20 
N.  J.  Eq.  61;  Sixth  Ave.  R.  R.  Co.  v. 
Kerr,  45  Barb.  138;  Galbreath  v.  Ar- 
mour, 4  Bell.  App.  Cas.  374;  Boston  v. 
Richardson,   13    Allen   146;    Sears    v. 


Marshalltown  St.  R.  Co.,  65  Iowa  742; 
Redfield  on  Railways,  3d  ed.,  p.  317; 
Mahady  v.  Bushwick  R,  R.  Co.,  91 
N.  Y.  148 ;  Eichel  v.  Evansville  St. 
R.  Co.,  78  Ind.  261  ;  41  Am.  Rep.  561; 
Hiss  v.  Balto.  &  Hampden  Pass.  R. 
Co.,  52  Md.  242;  36  Am.  Rep.  371  ; 
People  V.  O'Brien,  iii  N.  Y.  i;  2  L. 
R.  A.  255,  and  note;  Adams  v.  Chicago, 
B.  &  X.  R.  Co.,  39  Minn.  286;  i  L.  R. 
A.  493;  People  V.  Newton,  112  N.  Y. 
396;  3  L.  R.  A.  194;  Attorney  Gen.  v. 
Lombard  &  South  St.  Pass.  Ry.  Co., 
32  Leg.  Int.  (Pa.)  338;  i  W.  N.  Cas. 
489;  People's  Pass.  Ry.  Co.  v.  Mem- 
phis (Tenn.),  15  S.  W.  Rep.  973  (1875). 

But  in  Iowa  it  is  the  well  settled 
doctrine  that  cities  may  authorize  the 
construction  of  street  railways.  Da- 
mour  V.  Lyon,  44  Iowa  276.  A  liter  of 
steam  railways;  Stanley  v.  Daven- 
port, 54  Iowa  463;  37  Am.  Rep.  216. 

In  Indiana  it  is  held  that  under  sec- 
tion 3161,  R.  S.  (18S1)  an  incorporated 
city  has  exclusive  power  over  streets 
and  may  grant  a  railway  company 
power  to  lay  down   tracks   along   and 


l6  ELECTRIC   WIRES  [§  12. 

has  been  held  in  many  cases  to  which  I  shall  refer  hereafter, 
that  since  there  is  no  change  in  the  purpose  or  manner  of  the 
use  of  the  streets,  and  since  the  poles  and  wires  are  necessary  and 
incidental  to  the  use  of  the  streets  for  this  mode  of  public  travel, 
there  is  no  additional  burden  imposed  upon  the  land  and  no 
trespass  committed  upon  the  adjoining  owner.  The  decision  of 
this  question  has  an  important  bearing  on  the  question  whether 
it  is  within  the  power  of  the  municipality  to  grant  such  a  privi- 
lege, but  since  it  is  doubtful  whether  even  horse  railroads  may  be 
authorized  without  special  legislative  sanction  and  since  the  rail- 
roads are  usually  constructed  under  legislative  authority  of  some 
kind  we  need  only  refer  here  to  the  cases  cited  and  discussed  in 
the  following  sections  of  this  chapter  and  in  the  chapter  on  the 
Rights  of  Abutting  Owners  with  Respect  to  the  Electric  Railway.' 
§  12.  Power  of  Municipality  to  Authorize  Street  Railway  Companies 
to  Use  Poles  and  Electric  Wires. — Supposing  the  legislature  to 
have  authorized  the  operation  of  a  street  railway  in  the  streets  of 
a  city,  and  by  the  original  or  a  subsequent  grant  to  have  authorized 
the  use  of  electric  motors,  is  it  competent  for  the  municipal 
authorities  to  permit  and  regulate  the  construction  of  what  is 
called  the  overhead  system  for  supplying  the  electricity  ?  On 
this  question  there  has  been  some  difference  of  opinion  among 
the  courts.  Under  an  express  grant  by  the  legislature  of  the 
right  to  use  poles  and  wires  the  city  council  would,  of  course,  have 
power  to  regulate  the  use  and  designate  the  size  and  location  of 
the  poles,  and  so  give  the  company  their  consent  to  the  use  of 
the  streets  in  the  manner  required,  but  when  the  statute  provides 
generally  for  the  use  of  electric  motors  the  question  may  arise 
whether  this  gives  by  implication  the  right  to  use  this  means  of 
supplying  the  electricity,  and  this  may  depend  on  whether,  at  the 
time  of  the  passage  of  the  act,  the  use  of  the  term  electric  motor 
in  connection  with  street  cars  implied  the  use  of  poles  and 
wires  for  supplying  the  electricity.  Before  stating  the  cases  on 
this  subject  I  may  suggest  that  since  the  right  to  construct 
and  operate  has  been  given,  and  such  a  railway  has  been  held 
to  be  a  proper  use  of  the  street  and  no  trespass  on  the  land, 
and  since  the  poles  and  wires  are  used  as  necessary  or  conveni- 
ent means  of  supplying  the  power,  and  are  not  in  themselves  a 

across  streets.     Kistner  v.  Indianapo-  M.  &  C.  Ry.  Co.,  55  Ala.  413;   28  Am. 

lis,  100    Ind.    210.     See    also    Carli    v.  Rep.  740. 

Stillwater  St.  Ry.  Co.,  28  Minn.  373;  41  ^  Chapter   II,    §§   12-20,   and   Chap- 
Am.  Rep.  290;  Perry  v.  New   Orleans  ter  X. 


§  13-]  IN   STREETS   AND    HIGHWAYS.  1/ 

greater  obstruction  of  the  streets  than  lamp  posts  or  hitching 
posts,  or  shade  trees,  it  may  well  be,  that  if  power  is  given  by 
the  legislature  to  use  electricity,  the  local  authorities,  under  their 
power  to  regulate  streets,  may  permit  poles  to  be  set  up  in  such 
a  way  as  in  their  judgment  will  not  interfere  with  public  travel 
and  provide  for  stretching  the  wires  required  to  facilitate  travel 
in  the  street  cars. 

The  municipality  has  not  the  power  to  divert  the  street  or  any 
part  of  it  from  its  proper  uses  as  a  street,  nor  to  impose  a  new 
burden  on  the  land,  nor  to  affect  any  of  the  rights  of  the  land- 
owner in  the  street,  and  whether  the  use  of  the  electric  railway 
with  the  overhead  system  does  any  of  these  things  must  be  the 
subject  of  a  separate  chapter ;  and  in  considering  the  rights  of  the 
abutting  owner  I  shall  give  an  account  of  all  the  cases  relating  to 
the  electric  railway  in  the  streets.  I  need  only  refer  now  to  those 
in  which  the  power  of  the  municipality  has  been  especially 
considered, 

§  13.  The  Same  Subject :  Cases — Taggart  v.  Newport  Street  Rail- 
way Co. — The  question  came  before  the  Supreme  Court  of  Rhode 
Island  in  Taggart  v.  Newport  Street  Ry.  Co.,^  on  a  bill  filed  by  a 
property  owner  for  injunction  against  the  erection  of  the  over- 
head electric  system.  The  act  under  which  the  company  was 
incorporated  provided  that  the  road  might  be  operated  "  with 
steam,  horse  or  other  power,  as  the  council  of  the  city  might 
from  time  to  time  direct."  The  common  council  of  Newport 
passed  an  ordinance  giving  the  company  permission  to  use  the 
overhead  system,  with  poles  along  the  curbstone  and  wires  sus- 
pended over  the  tracks.  The  court  held  that  the  charter  of  the 
company  was  broad  enough  to  authorize  the  use  of  electric  power, 
and  that  the  words  "other  power"  were  not  to  be  confined  to 
animal  power,  but  that,  "As  the  charter  was  passed  in  the  winter 
of  1885,  when  the  idea  that  electricity  might  be  brought  into  use 
as  a  motor  was  familiar,  it  seems  probable  that  the  words  '  other 
power'  were  used  with  a  view  to  its  possible  employment."  They 
said  the  poles  and  wires  were  directly  auxiliary  to  the  ordinary 
uses  of  the  street  in  furnishing  the  power  by  which  street  cars  are 
propelled ;  that  the  electric  railway  did  not  constitute  a  new 
burden,  and  that  the  ordinance  was  valid. 


1  Taggart    v.  Newport    St.   Ry.  Co.,  with  note ;  43  Am.  &  Eng.  R.   R.  Cas. 

January  25,  1S90,  16  R.  I.   668  ;  19  Atl.  208,  7  L.  R.  A.  205,  with  note.    See  also 

Rep.  326;  2  Am.  Ry.  &  Corp.  Rep.  55,  this  case  quoted  infra  Chapter  X,  §  17. 
E.  W.-3 


l8  ZLECTRIC  WIRES  [§  1 5- 

§  14.  The  Same  :  Mt.  Adams  and  Eden  Park  Inclined  Railway  Co. 
V.  Winslow. — In  November,  1888,  it  was  decided  by  the  court  of 
common  pleas  of  Hamilton  County,  Ohio,  that  poles  and  wires 
for  the  electric  railway  were  an  additional  burden  upon  the  land 
used  for  a  street,  and  that  a  landowner  who  had  not  received 
compensation  was  entitled  to  a  mandatory  injunction  for  the 
removal  of  the  poles.'  On  appeal  to  the  circuit  court  of  Ham- 
ilton County  the  decision  was  reversed,^  and  it  was  held  that  the 
use  of  the  streets  for  horse  cars  was  a  proper  one,  and  that  the 
change  of  the  motive  power  to  electricity  made  no  difference,  and 
the  poles  and  wires  being  used  for  the  purpose  of  facilitating 
public  travel,  imposed  no  new  burden  on  the  land.  The  per- 
mission to  make  the  change,  and  to  put  up  the  poles  and  wires 
was  given  by  the  common  council,  and  the  court  held  that  the 
plaintiff,  an  abutting  landowner,  was  not  entitled  to  an  injunction. 
The  right  of  the  common  council  to  grant  the  permission  was 
not  discussed,  but  it  must  have  been  assumed  that  the  grant  was 
sufficient,  or  else  that  the  point  was  not  one  which  could  be 
taken  by  the  adjoining  landowner. 

§  15.  The  Same :  Lonergan  v.  Lafayette  Street  Railway  Company. — 
In  Lonergan  v.  Lafayette  Street  Railway  Co.,  decided  by  the  circuit 
court  of  Lafayette,  Indiana,  July  9,  1890,'  it  appeared  that  the 
statute  under  which  the  defendant  company  was  organized  pro- 
vided for  the  incorporation  of  any  "street  or  horse  railroad  company 
for  the  purpose  of  constructing  street  or  horse  railroads  through  the 
streets  of  the  cities  and  towns"  of  Indiana.  The  act  was  entitled 
"An  act  to  provide  for  the  incorporation  of  street  railroad  com- 
panies," and  was  passed  in  1881.  The  city  gave  the  company 
license  in  1882  to  operate  their  road  by  horse  or  electrical  power. 
The  court  held  that  the  legislature  must  be  supposed  to  have 
contemplated  new  discoveries  and  inventions,  and  that  they 
must  not  be  understood  as  meaning  to  exclude  the  new  and  use- 
ful appliances  that  might  be  invented,  and  that  the  language  of 
the  act  was  broad  enough  to  cover  a  street  railroad,  whether  the 
cars  are  drawn  by  horses  or  propelled  by  electricity.  It  was 
held  also  that  there  was  no  change  in  the  use  of  the  street,  and 
that  neither  in  the  use  of  poles  nor  by  reason  of  danger  and 
noise,  was  there  a  new  servitude  imposed  upon  the  land. 

'  Mt.  Adams  and  Eden  Park  Inclined  counsel  for  the   Edison   General  Elec- 

Ry.  Co.  V.  Winslow,  ao  Week.  Bull.  420.  trie  Company,  No.  44  Broadway,  New 

*  S.  c,  3  Ohio  Circuit  Ct.  Rep.  425.  York,  for   copies  of   the   opinions    in 

'  I  am  indebted  to  Mr.  John  A.  Wise,  this  and  the  two  following  cases. 


I  17.]  IN   STREETS   AND   HIGHWAYS.  IQ 

§  16.  The  Same :  Louisville  Bagging  Manufacturing  Co.  v.  Central 
Passenger  Railway  Co. — A  similar  decision  was  made  about  the 
same  time  in  the  Louisville  law  and  equity  court,  at  Louisville, 
Kentucky.'  The  company  was  incorporated  in  1865.  An  act  of 
the  legislature  was  passed  in  1871  authorizing  the  company  and 
the  city  to  alter  any  contract  theretofore  made  in  relation  to  the 
motive  power  to  be  used  in  propelling  cars  on  its  tracks.  In 
1884  the  legislature  amended  the  charter  so  as  to  grant  the  com- 
pany the  right  to  operate  its  cars  by  the  cable  system  or  electric- 
ity, or  such  other  power  as  might  be  approved  by  the  general 
council  of  the  city  of  Louisville.  In  1886  an  act  was  passed 
authorizing  the  company  to  build  and  operate  lines  on  the 
streets  and  routes  granted  through  its  charter  or  by  ordinance, 
such  lines  to  be  operated  by  any  power  now  authorized  in  the 
charter  as  amended,  and  the  council  was  empowered  thereafter  to 
grant  "authority  to  build  and  operate  lines  on  routes  and  on  such 
terms  and  conditions"  as  might  be  agreed  upon. 

In  1888  the  council  granted  the  right  to  use  the  cable  or  elec- 
tricity as  a  motor  on  any  or  all  of  its  lines,  and  to  erect  all  neces- 
sary structures  and  appliances  therefor.  It  was  held  that  there 
was  no  doubt  the  company  had  acquired  legislative  and  muni- 
cipal sanction  of  the  use  of  electricity  as  a  motive  power,  and  that 
the  erection  of  posts  and  the  construction  of  the  apparatus  neces- 
sary for  the  safe  application  and  use  of  electricity  as  a  motive 
power  was  not  a  diversion  of  the  street  from  its  proper  uses. 

§  17.  The  Same:  Detroit  City  Railway  Co.  v.  Mills.— In  Detroit 
City  Railway  Co.  v.  Mills,  in  the  circuit  court  of  Wayne  County, 
Michigan,  the  action  was  brought  for  cutting  down  a  pole  erected 
for  an  electric  railway,  and  the  defense  was  that  the  plaintiff  had 
no  right  to  put  it  up.  The  company  was  authorized  by  statute 
to  propel  its  cars  by  steam  or  other  power  whenever  the  munici- 
pality should  authorize  the  same.  In  January,  1889,  it  was  em- 
powered by  a  city  ordinance  to  substitute  for  animal  power  such 
system  of  electric  or  other  motive  power,  except  steam,  as  should 
seem  best.  It  was  held  by  Reilly,  J.,  that  the  electric  railway  did 
not  constitute  a  new  burden,  and  that  it  was  within  the  power  of 
the  city  council  to  authorize  the  use  of  the  poles  and  wires. 

This  decision  was  affirmed  by  the  Supreme  Court  of  Michigan, 
May  6,   1891.'     And  it  was  held  that  under  this  action  of  the 

1  Louisville  Bagging  Manufacturing  '  Detroit  City  Ry.  Co.  v.  Mills,  48 
Co.  V.  Central  Passenger  Ry.  Co.,  N.  W.  Rep.  (Mich.)  1007;  10  Ry.  & 
June  30,  1S90.  Corp.  L.  J.   103.     Two  of    the   judge% 


20 


ELECTRIC   WIRES  [§  I9. 


legislature  and  the  municipality,  the  railroad  company  had  a 
right  to  use  the  overhead  system  for  propelling  street  cars  by 
electricity,  and  in  this  case,  it  will  be  observed,  the  poles  and 
wires  are  not  mentioned  in  the  ordinance,  but  are  only  implied  in 
the  general  permission  to  use  electricity  as  a  motive  power. 

§  18.  The  Same :  Pelton  v.  East  Cleveland  R.  R.  Co. — In  Pelton 
v.East  Cleveland  R.  R.  Co'  the  company  had  constructed  a  street 
railway  under  a  general  ordinance  of  the  city  of  Cleveland  regu- 
lating the  construction  and  running  of  passenger  cars  drawn  by 
horses  or  mules.  The  road  was  built  in  1859,  ^"^  there  was  no 
statute  at  the  time  authorizing  the  construction  of  street  rail- 
roads, but  the  company  obtained  the  consent  of  the  owners  of 
the  greater  part  of  the  adjoining  property  in  pursuance  of  the 
ordinance.  The  statute  pertaining  to  the  subject  was  not  passed 
until  1 861.  In  1879  the  company  obtained  from  the  city  a  re- 
newal of  the  franchise  for  twenty-five  years,  but  did  not  ask  for 
the  consent  of  property  owners.  On  July  13,  1888,  the  city 
council  passed  an  ordinance  granting  the  company  "  the  right  to 
erect  and  maintain  wires  and  all  necessary  appliances  for  produc- 
ing and  conducting  electricity  as  the  motive  power  "  on  a  certain 
part  of  its  line,  and  this  was  extended  by  resolution  on  May  13, 
1889,  to  the  streets  in  question.  On  a  bill  for  injunction  by  one 
hundred  and  twenty-five  property  owners,  it  was  held  that  the 
change  of  motive  power  did  not  change  the  manner  of  use  of  the 
street,  nor  impose  a  new  burden  upon  the  land  ;  that  the  pro- 
vision requiring  consent  of  property  owners  did  not  apply,  and 
that  the  ordinance  and  resolution  were  valid.  The  decision  of 
the  common  pleas  was  afifirmed  on  appeal  by  the  circuit  court, 
Caldwell,  J.,  reading  the  opinion  of  the  court." 

§  19.  The  Same  :     Cases  in  Chancery  in  New  Jersey.— In  Halsey  v. 
Rapid   Transit  Street  Railway   Co.,    the  question    came    before 

dissented,  but  only  on  the  ground,  that  hoga  circuit  court,    not  yet    reported, 

street  railways,  especially  if  they  use  See  also  State  of  Ohio  v.   East  Cleve- 

the    overhead    electric    system,  are  a  land  R.  R.  Co.,  in  the  Cuyahoga  cir- 

new  burden  on  the  street,  for  which  cuit  court,  quoted  in  this  opinion,  in 

damages    must  be    paid    to     abutting  which  it  was  held  that  the   consent  of 

owners.     For  a  fuller  statement  of  the  property-   owners,    having   once   been 

case,  see  §§  18  and  24,  Chapter  X,?'«/rrt  obtained     for    the    construction   of   a 

(Abutting     Owners  —  Electric     Rail-  horse    railroad,  was    not    required    on 

-vvav).  the  renewal  of  the  franchise  nor  on  the 

1  Pelton  v.  East  Cleveland  R.  R.  Co.  change     of     motive    power     to    elec- 

Cuyahoga    Com.    Pleas,    Ohio    (July  tricity. 

1889),  22  Week.  Bull.  67;  s.  c,  Cuya-  ^  See  Chapter  X,  §  16,  infra. 


§  ig.]  IN   STREETS   AND    HIGHWAYS.  21 

the  court  of  chancery  of  New  Jersey.'  The  railroad  company 
had  been  organized  under  a  general  act  for  the  formation  of 
street  railway  companies  which  prescribed  no  special  motive 
power.  There  was  also  a  later  statute  authorizing  the  use  of 
electric  motors  with  the  consent  of  the  common  council,  and  this 
consent  had  been  given  by  a  resolution  authorizing  the  erection 
of  poles  along  the  curb  line  of  certain  streets  and  along  the  mid- 
dle line  of  the  broader  streets,  prescribing  the  character  of  the 
poles  and  fixing  the  location  of  them. 

Van  Fleet,  V.  C,  referring  to  the  fact  that  the  company  was 
organized  under  a  general  statute  for  the  formation  of  street 
railway  companies  which  in  no  way  specified  or  limited  the  kind 
of  motive  power  to  be  used,  said :  "  Hence,  under  the  general 
grant  of  power  to  maintain  and  operate  a  street  railway,  it  would 
seem  to  be  clear  that  a  corporation  formed  under  this  statute 
takes,  by  necessary  and  unavoidable  implication,  a  right  to  use 
any  force  in  the  propulsion  of  its  cars  that  may  be  fit  and  appro- 
priate to  that  end,  and  which  does  not  prevent  that  part  of  the 
public  which  desires  to  use  the  street  according  to  other  custom- 
ary methods,  from  having  the  free  and  safe  use  thereof.' 

Besides  the  act  of  incorporation,  he  said,  there  was  another 
statute  expressly  authorizing  the  use  of  electricity  as  a  motive 
power  with  the  consent  of  the  common  council.  The  consent 
had  been  given  by  resolution,  and  a  resolution  was  sufificient  (no 
particular  mode  of  giving  the  consent  being  specified).  The 
resolution  provided  for  supplying  the  electricity  by  means  of  the 
poles  and  wires,  and  in  the  present  state  of  the  art,  as  appears 
from  the  evidence,  these  constitute  a  part  of  the  best,  if  not  the 
only  means  by  which  electricity  can  be  successfully  used  for 
street-car  propulsion  ;  and,  therefore,  he  held  the  defendants  had  a 
right  to  use  the  poles  and  wires  to  furnish  the  motive  power  for 
operating  their  road.  He  held,  moreover,  that  they  were  used  to 
facilitate  public  travel  on  the  street  in  the  cars,  and  did  not  impose 
a  new  burden  on  the  land  nor  entitle  the  owner  to  compensation. 
This  decision  was  approved  and  acted  on  by  the  Chancellor  of  New 
Jersey  in  Jersey  City  and  Bergen  St.  R.  R.  Co.  v.  Jersey  City,  de- 
cided in  November,  1891,  in  which  an  order  was  made  restraining 
a  new  board  of  works  from  interfering   with  the    construction 


I47  N.  J.  Eq.  380;    20  Atl.  Rep.  859,  55  Am.  &  Eng.  R.  R.  Cas.  76;    Dec.  6, 
1890. 
"^  N.  J.  Law  Journal,  April,  1892. 


22  ELECTRIC   WIRES  [§  20. 

of  a  line  of  poles  and  wires  permitted  by  an  ordinance  of  the 
common  council  under  the  statute  authorizing  the  use  of  electric 
motors.  The  order  permitted  proofs  to  be  made  to  show  that 
this  manner  of  construction  of  this  particular  line  was  dangerous, 
but  excluded  all  evidence  to  discredit  the  trolley  system,  on  the 
ground  that  the  right  to  use  that  was  fixed  by  the  action  of  the 
common  council  under  the  statute. 

It  is  to  be  observed,  that  in  none  of  these  cases  is  the  use  of 
poles  and  wires  expressly  authorized  by  the  legislature,  and  in 
some  of  the  cases  it  is  not  expressly  mentioned  in  the  municipal 
ordinance ;  but  in  all  the  cases  it  is  held  or  assumed  that  the  aur 
thority  to  use  the  electric  motor  is  sufficient  authority  for  using 
these  means  of  supplying  electricity. 

§  20.  The  Same :  Contrary  Decision  in  the  New  Jersey  Supreme 
Court. — The  questions  raised  in  the  Halsey  case  came  before  the 
New  Jersey  Supreme  Court  in  a  suit  on  certiorari  between  the 
same  parties,  and  it  was  decided  that  the  common  council  had  not 
power  to  grant  the  resolution  authorizing  the  erection  of  the 
poles.  No  reference  was  made  to  the  opinion  of  the  vice-chan- 
cellor nor  to  any  of  the  cases  above  cited.  The  decision  was 
based  upon  the  construction  of  the  statute  and  upon  the  conclu- 
sion of  the  court  upon  the  evidence  as  to  what  was  implied  in 
the  term  electric  motor.' 

The  court  assumed  it  to  be  entirely  settled  that,  without  the 
authority  of  the  statute,  the  city  council  had  no  power  to  permit 
the  use  of  the  poles,  and  decided  that  the  statute  in  providing 
for  electric  motors  did  not  by  implication  sanction  the  obstruc- 
tion of  the  street  by  the  poles  and  wires  of  the  overhead  system. 
The  conclusion  was  that  the  common  council  had  no  power  to 
authorize  or  consent  to  anything  more  than  the  use  of  an  electric 
motor  (operated  by  a  storage  battery  within  the  car),  and  that 
the  ordinance  pretending,  as  it  did,  to  vest  in  the  company  the 
right  to  place  poles  and  string  wires  in  the  streets  was  a  nullity. 
The  court  expressly  said  that  its  conclusion  rested  upon  the  in- 
tention of  the  legislature,  as  expressed  in  the  act,  and  declined  to 
express  an  opinion  on  the  question  whether  the  rights  of  the 
owners  of  abutting  land  were  affected.  The  court  distinguished 
between  the  electric  railway  operated  by  the  overhead  system 
and   the   horse    railway   as   described    by    Chancellor   Green    in 

^  State,  Green,  pros.  v.  Trenton  and  sey  pros.  v.  Newark  and  the  Newark 
the  Trenton  R.  R.  Co.  and  State.,  Hal-     Pass.   Ry.   Co.  N.   J,  Supreme  Court, 


§21.]  IN   STREETS   AND   HIGHWAYS.  23 

Hinchman  v.  Paterson  R.  Co.,  above  referred  to/  and  said  it  was 
only  because  horse  railways  made  no  obstruction  in  the  streets, 
that  they  were  considered  in  that  case  as  being  only  a  modifi- 
cation of  the  ordinary  use  of  the  streets  for  vehicles ;  but  poles 
and  wires,  the  court  held,  were  such  obstructions  as  changed  the 
character  of  the  use  of  the  street  and  could  only  be  permitted  by 
the  clearest  expression  of  legislative  intent.  This  decision  will 
be  considered  hereafter  in  connection  with  the  decisions  of  other 
courts  which  have  taken  a  very  different  view  of  the  relation  of 
these  poles  to  the  proper  uses  of  the  street." 

§21.  The  Same:  Telegraph  and  Telephone  Lines. — Legislative 
sanction  either  given  directly  or  mediately  conferred  through 
proper  municipal  action  is,  of  course,  as  Judge  Dillon  says,  nec- 
essary to  authorize  the  use  of  the  streets  for  the  poles  and  wires 
of  a  telegraph  or  telephone  company  ;'  but  the  question  remains 
whether,  under  the  powers  generally  conferred  upon  city  govern- 
ments, they  have  authority  to  grant  permission  to  set  up  telegraph 
and  telephone  lines  in  the  streets.  Whether  this  comes  within 
the  power  to  regulate  streets,  depends  a  good  deal  on  whether 
the  use  of  the  streets  for  telegraph  and  telephone  purposes  is  a 
proper  street  use  or  not,  and  this  question  will  be  discussed 
in  the  chapter  on  the  Rights  of  Abutting  Owners  with  respect  to 
the  telegraph  and  telephone."  It  has  been  held  in  many  States, 
that  these  Hnes  are  a  new  use  of  the  streets,  and  impose  an  addi- 
tional burden  on  the  land,  and  if  this  is  so,  it  would  require  spe- 
cial legislative  sanction  to  justify  their  construction.  In  New 
Jersey,  where  the  consent  of  the  landowner  to  the  poles  is  re- 
quired by  statute,  it  has  been  held  that  a  city  having  liberal 
charter  powers  has  not  authority  to  grant  a  telephone  company 
the  right  to  erect  and  maintain  a  line  of  poles  and  wires  in  the 
streets.'  Magie,  J.,  said,  the  legislature  representing  the  public, 
may  restrict  the  public  use  by  granting  a  right  to  erect  poles 
and  other  obstructions  in  the  streets,  and  may  delegate  such 
authority  to  municipalities,  "  but  such  grant  of  power  must  plainly 
appear  either  by  express  grant  or  by  necessary  implication." 
In  a  case  in  Missouri,'  where   the  telegraph   is  held   to  be  a 

January,  1892;  15  N.  J.  Law  Journal  34  *  Chapter  VIII;   and  see  also  Chap- 

and  415,  with  note  stating  the  evidence  ters  IX  and  X. 

and  citing  cases.  *  State  v.  Domestic  Teleg.  &  Teleph. 

1  §  9.  17  N.  J.  Eq.  78.  Co.  V.  Newark,  49  N.  J.  L.  344   (18S7). 

2  Chapter  X.  «City   of   St.  Louis  v.   Bell  Teleph. 
» Dillon  Mun.  Corp.  4th  ed.  )  698.  Co,  96  Mo.  623;  Julia   Building  Asso- 


24  ELECTRIC   WIRES  [§  22. 

proper  use  of  the  street,  large  powers  had  been  granted  to  the 
city  of  St.  Louis,  and  no  question  was  made  as  to  its  power  to 
grant  the  right  to  construct  the  line  of  telegraph.  The  court 
said  that  the  power  of  the  city  of  St.  Louis  to  regulate  streets, 
extends  to  new  uses  as  they  spring  into  existence  from  time  to 
time,  as  well  as  to  old  ones  in  use  at  the  time  of  the  grant  of  the 
power,  and  that  the  telephone  was  one  of  such  uses.  The  line 
had,  however,  in  fact  been  authorized  by  statute  as  well  as  by 
ordinance.  These  decisions  relate  especially  to  privileges  con- 
ferred on  companies  constructing  lines  for  business  purposes,  but 
the  telephone  and  telegraph  are  both  used  for  municipal  pur- 
poses in  aid  of  the  fire  and  police  departments,  just  as  elec- 
tric-light wires  are  used  for  public  lighting,  and  it  would  seem 
that  a  city  having  full  police  powers  would  have  implied  author- 
ity to  set  up  telegraph  poles  for  such  purposes,  as  well  as  to  place 
fire  plugs  and  lamp  posts  in  the  streets.' 

§  22.  The  Same :  Electric  Lighting. — The  powers  of  village 
trustees  are  not  as  great  as  those  of  a  city  corporation  and  it  has 
been  held  in  New  York,  that  the  trustees  of  a  village  have  power 
to  authorize  the  erection  of  poles  for  lighting  the  streets  and 
public  places  by  electricity,  even  if  not  for  lighting  private  build- 
ings, but  that  the  fact  that  a  pole  is  used  also  for  private  pur- 
poses does  not  justify  the  removal  of  it." 

And  in  a  later  case,  the  supreme  court  referring  to  this,  was 
inclined  to  admit  the  power  of  the  municipal  authorities  to 
authorize  the  use  of  poles  and  wires  for  lighting  all  private 
houses  which  should  require  the  light.  The  court  said  the  owner 
of  the  soil  might  have  a  right  to  compensation,  but  it  does  not 
follow  that  he  has  any  other  right,  and  an  injunction  against  his 
cutting  down  the  poles  was  allowed,  although  the 'poles  were 
part  of  a  system  intended  for  lighting  an  adjoining  village.* 

ciation  v.  Bell  Teleph.Co.,  88  Mo.  258.  field  Gas  Co.,  22  Eng.  Law  &  Eq.  518; 
See  Rights  of  Abutting  Owners,  Tele-  Galbreath  v.  Armour,  4  Bell  App.  Gas. 
graphs  and  Telephones,  infra.  Chap-  394,  and  other  cases  cited  infra  Chap- 
ter VIII.  ter  IX,  ^  2,  note. 

As  to   the   necessity  for  legislative  ^  For   cases    on  this   and  analogous 

authority  for  using  the  streets  or  high-  questions  see  the  next  paragraph  (33), 

ways  for  telegraph  or  telephone  poles,  and  also  Chapter  IX. 

see  also  Commonwealth  v.  Boston,  97  '^  Johnson  v.Thompson  Houston  Elec- 

MaSs.  555 ;  Regina  V.  United  Kingdom  trie  Co.,  54    Hun  469;   28  N.  Y.   St. 

Elec.  Teleg.  Co.,  9  Cox.  Cr.  Cas.    173-  Rep.  296;  7  N.  Y.  Supp.  716.    See  also 

iSo;     Young    v.   Yarmouth,   9    Gray  Elliott  on  Roads  525. 

386.  ^  Electric  Construction  Co.  v.  HeflF- 

As  to  gas  pipes,  see  Regina   v.  Shef-  ernan  (Sup.  Ct.),  34  N.  Y.  S.  R.  430; 


§  24-]  IN  STREETS  AND  HIGHWAYS.  2$ 

§  23.  Governing  Principle  in  All  These  Cases.— With  respect  to  all 
these  uses  of  the  street,  the  governing  principle  would  seem  to 
be,  that  municipal  corporations  cannot  grant  exclusive  privileges, 
cannot  divert  the  street  from  its  proper  uses  as  a  street,  and  can- 
not take  private  property,  whether  incorporeal  or  tangible ;  but 
they  have  the  power  to  regulate  the  use  of  the  streets,  and  to  de- 
termine in  the  first  instance,  at  least,  whether  or  not  anything 
is  an  obstruction  to  the  public  use  of  the  street.  There  are  many 
purposes  of  a  public  nature  for  which  streets  have  been  em- 
ployed by  custom,  which  are  in  no  way  connected  with  public 
travel.  They  have  been  used  for  sewers,  gas  pipes  and  water 
pipes.  They  have  been  incumbered  with  lamp  posts,  awnings, 
and  hitching  posts.  They  are  convenient  avenues  for  dis- 
tributing water,  light,  heat,  power  and  other  things  of  general 
necessity  or  convenience.  If,  therefore,  the  use  of  electric  wires, 
whether  over  the  street  or  underground,  for  any  particular 
purpose,  does  serve  a  purpose  for  which  streets  are  ordinarily 
used,  does  not  involve  an  exclusive  franchise,  and  does  not 
affect  private  rights  in  the  adjoining  lands,  and  does  not  obstruct 
public  travel,  in  any  such  case  it  would  seem  that  a  municipal 
corporation  might,  under  its  implied  powers,  give  authority  to 
use  the  street  for  the  electric  wires. 

§  24.  The  Paramount  Authority  Is  in  the  Legislature. — The  subject, 
however,  belongs,  as  I  have  said,  more  especially  to  the  law  of 
Municipal  Corporations  and  Municipal  Franchises  ;  and  without 
discussing  it  any  further,  I  only  wish  to  emphasize  the  fact  that 
the  power  over  the  streets  belongs  to  the  legislature  and  not 
to  the  municipality.  The  legislature  alone  has  the  power  to 
divert  them  from  their  ordinary  uses,  or  to  limit  or  extend  the 
uses  to  which  they  may  be  put.  The  streets,  as  Judge  Dillon 
says,  do  not  belong  to  the  city  or  town  where  they  are  situated, 
even  though  acquired  by  the  exercise  of  eminent  domain  and 
the  damages  paid  out  of  the  corporation  treasury.  The  au- 
thority of  municipalities  over  streets,  they  derive,  as  they  derive 

12  N.   Y.    Supp.    336;    58    Hun    605  Co.,  67    How.    Pr.  73    (N.   Y.    1SS4) ; 

(1S90).        The     distinction     between  People  ex  re/.  McManus  v.  Thompson, 

lighting    public    places    and    private  65  How.  Pr.  407;    People  ex  rcl.  Mc- 

houses  was  taken  in  Tiffany  v.  U.  S.  Manus,  32  Hun  93.     Some  account  of 

Illuminating  Co.,  50  N.  Y.  Super.  Ct.  these  cases  will  be  found  in  connec- 

280   (1885).      See    also    in   regand   to  tion  with  the  rights  of  abutting  owners 

municipal  authority  under  legislative  with   respect    to   electric-light   wires, 

sanction,  Tiffany  v.  U.  S.  Illuminating  (Chapter  IX). 


26  ELECTRIC   WIRES  [§  2$. 

all  their  other  powers,  from  the  legislature  —  from  charter  or 
statute.' 

It  is  also  important  to  bear  in  mind  that  so  far  as  the  rights  of 
the  public  are  concerned,  the  power  of  the  legislature  over  the 
streets  is  absolute.  Subject  only  to  making  compensation  for 
injury  to  private  property — that  is,  to  land  or  to  rights  in  or  relat- 
ing to  land — the  legislature  representing  the  public  has  absolute 
power  to  dispose  of  the  public  rights  in  the  streets.^  It  may 
release  the  public  rights  either  wholly  or  partially  ;  it  may  vacate 
the  street  entirely,  or  authorize  it  to  be  used  wholly  or  partially  for 
a  railroad  or  telegraph  or  any  other  purpose.  It  is  only  with 
respect  to  the  private  rights  of  owners  of  land  along  the  street 
that  any  question  can  arise  in  regard  to  the  authority  of  the 
legislature,  or  the  municipality  duly  authorized  by  the  legisla- 
ture, to  change  the  uses  of  a  street  or  divert  any  part  of  it  from 
the  purposes  of  public  travel  to  any  other  purpose.  All  these 
questions  in  regard  to  the  diversion  of  the  streets  from  their 
ordinary  uses  will  be  considered  in  dealing  with  the  rights  of  the 
owners  of  abutting  lands,  and  the  question  whether  electric  wires 
of  various  kinds  may  be  put  up  in  the  streets  without  making 
compensation.* 

§  25.  Authority  of  Some  Kind  Is  Eeqnired  for  Spedal  Uses  of  the 
Street,  Even  though  They  Are  Proper  Street  Uses. — It  has  been 
argued  that  if  the  use  of  the  wires  or  rails  or  any  such  exclusive 
use  is  a  proper  use  of  the  highway,  no  authority  of  any  kind  is 
required,  because  the  highway  is  open  to  any  one  who  wishes 
to  use  it  as  a  highway,  and  hence  it  is  insisted  that  if  legislative 
authority  is  required  for  any  particular  use  of  the  highway,  this 
is  enough  to  prove  that  it  is  not  a  proper  use  of  the  high- 
way, but  a  new  use,  for  which  compensation  must  be  made  to  the 
abutting  owner.^  It  may  well  be,  however,  that  the  legislature 
has  a  right  to  distribute  the  space'  occupied  by  a  street,  and 
appropriate  the  several  parts  to  various  uses,  and  yet  that  individ- 

'  2  Dill.  Mun.  Corp.,  4th  ed.,  §  683,  phone,  Electric  Light,  Electric  Rail- 
citing  cases ;  Pennsylvania  R.  R.  Co.'s  Avaj,  etc. 

Appeal,  115  Pa.  St.  514;   Case  of  the  *  Lewis' Em.  Dom.,  §§  iii,  124. 

Phila.  &  Trenton  R.  R.  Co.,  6  Whart.  ^  See  Lonergan  v.  Lafayette  St.  Ry. 

25  (Pa.)  Co.,  circuit   court  at  Lafayette,  Ind., 

^  Ibid.  Dill,  on  Mun.  Corp.,  ^  657 ;  July  9,  1899.     Langdon,  J.,  says  :  "The 

Domestic    Teleg.  &    Teleph.    Co.    v.  use  of  a   street  has    been,    as    public 

Newark,  49  N.  J.  L.  344-346.  needs    have  required,  subdivided,  and 

^  In/ra  Chapters  VIII,  IX,  X,  Abut-  particular  portions  of  public  use  have 

ting    Owners — Telegraph   and    Tele-  been  restricted  to  certain  defined  lim- 


§25.] 


IN   STREETS   AND   HIGHWAYS. 


27 


uals  could  not  do  this  without  legislative  sanction.  If  there  are 
various  public  uses  to  which  streets  are  ordinarily  put,  the  public 
authorities  may  provide  for  them  all,  some  to  be  exercised  in  one 
part  and  some  in  another,  so  that  altogether  they  shall  serve  all 
the  purposes  for  which  the  street  is  required ;  and  yet,  without 
this  provision,  no  person  would  have  the  right  to  reserve  to  one 
special  use  any  part  of  the  space  devoted  to  the  general  uses  of 
a  street. 

However  this  may  be,  and  whatever  the  effect  of  the  decision 
upon  the  question  of  compensation  to  adjoining  owners,  it  appears 
to  be  well  settled  that  no  franchise  or  privilege  for  any  special 
use  of  the  streets  can  be  obtained  without  the  permission  of  the 
public  authorities ;  and  there  are  no  cases  in  which  it  is  held  that 
poles  and  wires  for  the  telegraph,  the  electric  light  or  the  electric 
railway  may  be  set  up  in  the  streets  without  authority  of  some 
kind. 


its  in  the  street,  as  the  sidewalks  are 
devoted  to  foot  passengers  and  the  in- 
termediate spaces  to  animals,  vehicles, 
and  other  uses.  The  greater  and  more 
complex  the  uses  become,  the  incon- 
venience to  former  uses  becomes 
greater  and  more  defined.  It  is  not, 
then,  every  incovenience,  impairment 
or  curtailment  of  the  customary  ac- 
commodations or  enjoyments  of  the 
general  public,  or  the  abutter,  that  will 
suffice  to  constitute  a  legally  apprecia- 
ble deprivation  of  a  right  of  either. 
To  determine  whether  a  use  of  a  street 
is  without  the  original  public  ease- 
ntent,  it  is  quite  plain  that  the  incon- 
venience complained  of  must  be  tan- 
tamount to  a  substantial  impairment 
of  the  public  use — in  other  words,  that 
the  use  of  the  street  is  destroyed  or 
converted  into  a  new  use,  subversive 
of  its  original  purpose." 


For  a  further  discussion  of  the 
power  of  municipal  corporations  over 
electric  wires  I  may  refer  to  Thomp- 
son on  Electricity,  chapter  3,  which 
has  appeared  since  the  chapter  was 
written. 

For  a  detailed  statement  of  the  laws 
of  all  the  States  with  respect  to  fran- 
chises for  the  use  of  the  streets,  see  a 
book  on  Economic  Legislation  of  All 
States  Relating  to  Incorporated  Com- 
panies Operating  Under  Municipal 
Franchises,  by  Allen  R.  Foote,  now 
being  printed  by  Robert  Clarke  &  Co., 
of  Cincinnati.  The  account  of  the 
statutes  and  decisions  of  each  State 
was  prepared  by  an  attorney  in  that 
State,  and,  having  myself  had  a  hand 
in  preparing  the  New  Jersey  section, 
I  know  that  it  is  useless  to  attempt  to 
go  into  the  statutes  of  all  the  States  in 
this  present  book  on  Electric  Wires. 


28  ELECTRIC   WIRES  [§  I. 


CHAPTER  III. 

MUNICIPAL   CONTROL — CONSENT   OF   LOCAL  AUTHORITIES. 

§  1.  Grants  Are  Ordinarily  Made  Subject  to  Control  of  Local  Author- 
ities.— The  legislature,  as  I  have  said,  has  the  power  to  grant 
the  right  to  make  any  special  use  of  the  streets.  This  power  is 
now  in  many  states  conferred  only  by  general  laws,  and  in  those 
cases  may  be  acquired  by  any  one  on  fulfilling  the  conditions 
prescribed. 

The  statute  giving  the  power,  generally  provides  for  the  super- 
vision or  consent  of  some  local  authority.  In  some  states,  there 
are  boards  of  commissioners  to  whom  such  matters  are  referred, 
in  others,  the  question  of  the  propriety  of  allowing  certain  fran- 
chises is  referred  to  the  Probate  court,  which  hears  evidence  and 
decides  to  a  certain  extent  judicially.  More  commonly,  the  regu- 
lation of  the  matter  is  delegated  to  a  greater  or  less  extent,  to  the 
municipality  where  the  streets  are  located. 

With  the  increase  in  the  use  of  electric  wires,  special  provisions 
have  been  made  for  the  regulation  of  the  setting  up  and  main- 
taining wires  in  the  streets  for  various  purposes.  The  statutes 
authorizing  the  construction  of  telegraphs  provided  in  many 
cases  for  the  designation  of  the  streets  by  the  common  councils 
of  the  towns  through  which  the  line  passed.  Special  ofificers  are 
in  many  cases  appointed  to  supervise  the  putting  up  of  electric 
light  wires,  and  boards  of  electrical  control  have  been  constituted 
in  some  large  cities,  with  extensive  powers  over  all  electric  wires. 

It  is  very  common  also  for  the  legislature  to  make  the  right 
to  use  the  street  conditional  upon  obtaining  the  consent  of  a 
certain  proportion  of  the  property  owners.' 

^  In  Ohio,  for  example   (Rev.  Stat,  are  to   appoint  appraisers  of  damages 

1890,  §  3459),  it  is  provided  that  the  of  persons  over  whose  lands  telegraph 

mode  of  use  of  streets  shall  be  such  as  lines  shall  pass  or  be  erected.     Act  of 

shall    be   agreed    upon    between    the  February    8,    1847,     Rev.    Stat.    1890 

municipal    authorities    and   the   tele-  (8747).     So  also  by  the  act  of  May  12, 

graph  company,  and  that  if  they  can-  1S86,  Rev.  Stat.  1890  (8752),  companies 

not  agree,  and  if  they  unreasonably  de-  are  authorized  to   construct  lines  for 

lay  to  enter  upon  an  agreement  made,  light  and  power  through  the  streets 

the  judge  of  the  Probate  court  of  the  and  alleys,  etc.,  with  the  consent  of  the 

county  shall  direct  in  what  mode  the  municipality.      In     Connecticut,     the 

telegraph    line    shall    be    constructed  selectmen  of  any  town,  the  common 

along  the   line  of   the  street.     In  the  council   of   any   city   and  the  warden 

same  State  the  county  commissioners  and    burgesses   of    any    borough    are 


§2j 


IN  STREETS  AND   HIGHWAYS. 


29 


The  authority  to  use  the  streets  comes  from  the  legislature, 
but  the  legislature  may  delegate  to  the  local  authorities  the 
right  to  say  upon  what  conditions  the  power  may  be  used,  or  it 
may  give  only  the  right  to  determine  the  manner  of  the  use.  In 
the  former  case,  there  is  a  distinct  delegation  of  legislative 
authority  to  grant  the  franchise ;  in  the  latter,  there  is  only  a 
grant  of  the  power  to  regulate,  but  not  to  withhold  the  franchise. 

§  2.  Grants  Upon  Condition  Precedent — Power  of  Municipality  in 
Such  Cases. — If  the  legislative  grant  is  made  conditional  upon  the 
municipal  consent  so  that  the  statute  amounts  to  a  distinct 
delegation  of  authority  to  determine  whether  the  line  shall  be 
constructed  or  not,  it  is  probably  true  that  no  authority  can  be 
obtained  without  the  consent  for  whatever  reason  it  may  be 
withheld,  although  there  are  decisions  which  suggest  that  this  is 
in  effect  legislation,    and  that  it  is  very  doubtful  whether  the 


given  full  direction  and  control  over 
the  placing,  erection  and  maintenance 
of  electric  wires  and  fixtures ;  Gen. 
Stat.,  §  3946,  and  no  company  using 
electric  wires  may  exercise  any  of  the 
powers  conferred  upon  it  to  erect 
wires  and  fixtures  over  or  under  any 
public  highway  without  the  con- 
sent of  the  adjoining  proprietors,  or 
in  case  such  consent  cannot  be  ob- 
tained without  the  consent,  in  writing, 
of  two  of  the  county  commissioners 
after  hearing  and  notice.     Gen.  Stat., 

§  3945- 

In  Illinois,  the  consent  of  the  town 
or  county  authorities  is  required. 
(Hurd's  Rev.  Stat.  1889,  ch.  134). 
In  Massachusetts,  the  location  of  the 
posts  is  to  be  specified  in  writing  by 
the  mayor  and  aldermen.  Pub.  Stat. 
1882,  ch.  109,  §  2.  See  also  ibid,  ch. 
27,  as  to  the  powers  of  the  selectmen, 
etc.  So  also  in  New  Jersey,  telegraph 
and  telephone  companies  are  author- 
ized to  use  the  highways  for  the  pur- 
pose of  erecting  poles  on  obtaining 
the  consent  in  writing  of  the  owners 
of  the  soil,  and  they  are  required  to 
apply  to  the  legislative  body  of  any 
municipality  through  which  they  may 
pass  for  a  designation  of  the  streets  to 
be  used  and  the  location  of  the  poles 


(Rev.  1 174,  Supp,  Rev.  1022).  Pro- 
vision is  made  for  application  to  the 
Circuit  court  in  case  the  owners  will 
not  consent,  or  the  town  authorities 
will  not  designate  the  streets  (Acts  of 
1S87,  ch.  377). 

For  a  collection  of  the  statutes  of 
the  various  states  relating  to  tele- 
graphs and  telephones,  see  Telegraflt 
La-.vs  of  the  United  States,  i  Volume, 
New  York,  1880;  Telegraph  Laws  oj 
the  American  States  and  Canada,  i 
Volume,  New  York,  1884,  and  ad- 
dendum 18S4  (prepared  for  the  use  of 
the  Baltimore  &  Ohio  Telegraph  Co.)  ; 
American  Statutes  Relating  to  Tele- 
phones Collected ;  series  of  articles  in 
American  Law  Register  (N.  S.),  vol. 
20,  by  J.  B.  Uhle;  Scott  &  Jarnagin 
on  Telegraphs,  published  in  1868,  con- 
tains an  appendix  of  statutes  in  force 
at  that  time.  See  also  a  number  of 
statutes  quoted  in  Thotnpson  on  Elec- 
tricity, ch.  3,  art.  2.  For  a  careful 
statement  of  the  laws  of  all  the  states 
in  regard  to  municipal  consent  to  elec- 
tric wires  in  the  streets,  see  Economic 
Legislation,  by  A.  R.  Foote,  with 
the  laws  of  several  states,  edited  by 
Charles  E.  Everett,  and  now  about  to 
be  published  by  Robert  Clarke  &  Co., 
Cincinnati. 


30 


ELECTRIC  WIRES 


[§3. 


legislative  department  can  delegate  to  any  other  authority  the 
power  to  grant  such  a  franchise.' 

It  has  been  held  that  where  the  right  is  given  upon  obtaining 
the  consent  of  the  municipality,  the  latter  is  not  limited  to 
giving  or  refusing  consent,  but  may  annex  conditions  as  the  price 
of  its  consent,  but  there  are  cases  in  which  it  is  held  that  the 
consent  cannot  be  withheld  arbitrarily,  but  that  it  is  the  exercise 
of  the  police  power,  and  must  be  exercised  in  a  reasonable 
manner  and  so  as  not  wholly  to  defeat  the  grant.' 

If  the  right  to  use  the  streets  is  made  conditional  upon  obtain- 
ing  the  consent  of  a  certain  number  of  property  owners  the 
condition  must  be  fulfilled  before  the  right  is  acquired." 

We  need  not  stop  to  discuss  the  subject  of  the  powers  of 
municipal  corporations  in  such  cases  with  reference  to  the  use 
of  the  streets  generally,  but  may  refer  to  the  standard  text  books.* 

§  3.  Grants  Subject  to  Municipal  Regulation. — Even  where  the 
assent  of  the  municipal  or  local  authority  is  not  expressly  made 
a  condition  of  the  right  to  use  the  streets,  it  is  usual  to  give 
power  to  determine  the  manner  in  which  the  streets  may  be  used. 
Without  discussing  this  subject  generally,  we  may  refer  to  some 


1  Peoples'  R.  R.  Co.  v.  Memphis  R. 
R.  Co.,  ID  Wall.  38-50  (1869)  per  Clif- 
ford, J. 

*  The  legislature  may  delegate  to  the 
municipality  the  right  to  say  how  and 
upon  what  conditions  the  public  streets 
may  be  used.  2  Dill.  Mun.  Corp.,  4th 
ed.,  §  708. 

The  consent  may  be  given  upon  con- 
dition e.  g.  that  a  station  shall  be  built, 
or  that  the  street  shall  be  paved.  2  Dill. 
Mun.  Corp.,  4th  ed.,  §  706,  and  cases 
cited ;  Jersey  City  &  B.  R.  R.  Co.  v.  J. 
C.  &  H.  R.  R.  Co.,  20  N.  J.  Eq.  61,  360, 
or  that  a  street  shall  be  graded  and  a 
crossing  built,  Ind.  &  Cin.  R.  R.  Co. 
v.  Lawrenceburgh,  34  Ind.  304,  or  that 
a  steam  locomotive  shall  not  be  used, 
Richmond  F.  &  P.  R.  R.  Co.  v.  Rich- 
mond,  96  U.  S.  521  ;  Detroit  v.  Detroit 
R.  R.  Co.,  43  N.  W.  Rep.  447,  but  the 
municipality  cannot  by  withholding 
consent  destroy  a  franchise  granted  by 
the  legislature,  Jersey  City  and  Ber- 
gen R.  R.  Co.  v.  Jersey  City  and  Hobo- 
ken  R.  R.  Co.,  20  N.  J.  Eq.  61 ;  Jersey 


City  v.  J.  C.  &  B.  R.  R.  Co.,  20  N.  J. 
360;  Paterson  Passaic  H.  R.  Co.  v. 
Paterson,  24  N.  J.  Eq.  158. 

Even  though  the  consent  of  the  city 
be  required  as  a  condition  precedent, 
the  courts  have  power  to  review  the 
decision  to  prevent  oppression  and 
fraud.  City  of  Savannah  v.  Hancock, 
91  Mo.  57,  3  S.  W.  Rep.  215;  City  of 
Kansas  v.  Baird,  98  Mo.  215,  11  S.  W. 
Rep.  243,  562 ;  St.  Louis  Ry.  Co.  v. 
Southern  Ry.  Co.  (Mo.),  16  S.  W.  Rep. 
960-962  (189 1 ). 

See  also  Am.  Union  Teleg.  Co.  v. 
Town  of  Harrison,  31  N.  J.  Eq.  628. 

3  2  Dill.  Mun.  Corp.,  4th  ed.,  §  705, 
706,  719  and  notes. 

*  So  held  in  the  case  of  an  electric 
street  railway  under  laws  of  New 
York  1884,  Ch.  252;  Re  Rochester 
Electric  Ry.  Co.,  33  N.  Y.  St.  Rep. 
695;  25  N.  E.  Rep.  381.  Also  in  a 
case  where  the  right  to  use  the  streets 
for  a  steam  railroad  was  given  only 
on  petition  of  the  owners  of  one-half 
the  frontage   of  the   adjoining    land. 


§5-]  IN  STREETS  AND   HIGHWAYS.  3 1 

special  provisions  in  the  way  of  regulation  which  are  commonly 
imposed  with  respect  to  telegraphs,  electric  light  wires  and  other 
electric  wires. 

§  4.  Designation  of  the  Streets  to  be  Used  For  Telegraph,  Telephone 
and  Electric  Light  Wires. — Where  the  statute  gives  the  right  to  use 
the  highway  for  the  purpose  of  a  line  of  telegraph,  and  provides 
that  the  company  must  first  obtain  from  incorporated  towns  a 
designation  of  the  streets  in  which  the  poles  shall  be  placed  and 
the  manner  of  placing  the  same,  the  application  for  this  designa- 
tion of  the  streets  is  a  condition  precedent  to  the  right  to  set  up 
the  poles.'  The  purpose  of  such  legislation  as  Vice-Chancellor 
Van  Fleet  says  in  a  New  Jersey  case'  "  is  to  invest  telegraph  com- 
panies with  the  right  to  use  the  streets  of  an  incorporated  town 
for  the  purpose  of  erecting  their  poles  therein,  subject,  nevertheless, 
to  such  municipal  control  as  may  be  necessary  to  secure  to  the 
public,  safety,  convenience  and  freedom  in  the  use  of  the  streets. 
The  municipal  authorities  may  say  what  streets  shall  be  used,  at 
what  points  in  the  streets  the  poles  shall  be  erected  and  how 
they  shall  be  planted  and  secured,  but  they  have  no  power  to  lay 
an  embargo.  They  have  a  right  to  regulate,  but  not  to  interdict, 
and  their  regulations  to  be  valid,  must  be  reasonable  and  fair." 

§  5.  The  Power  to  Designate  Streets  or  to  Specify  the  Kind  of  Poles 
Does  Not  Imply  the  Right  to  Impose  Other  Conditions. — If  the  right 
is  granted  subject  to  the  right  of  the  city  to  designate  the  streets, 
the  city  is  bound,  on  proper  application  made,  to  make  the  desig- 
nation,' and  where  a  company  has  power  under  a  statute  to  place 
poles  in  the  streets  subject  to  city  regulations  by  ordinance  of  the 
location  of  the  poles  and  the  kind  of  poles  that  shall  be  used,  it 

Hunt  V.  Chicago  Horse  «&  Dummy  R.  N.  J.  L.  83;  2  Dill.  Mun.  Corp.,  §  720, 

Co.,  121  111.  638.  (4th  ed.) 

A  horse  railway  prohibited  by  stat-  ^  Am.  Union   Teleg.  Co.  v.  Town  of 

ute   from  using  any  railroad,  turnpike  Harrison,  31  N.  J.  Eq.  628. 

or  artificial  road  without  the  consent  '  Am.  Union  Teleg.  Co.  v.  Town   of 

of  the  parties  owning  the  same,  cannot  Harrison,  31  N.  J.  Eq.  628. 

lay  its  rails  on   the   paved   streets   of  But  see   Suburban   Light   &  Power 

Philadelphia  without  the   consent   of  Co.  v.   Boston,   153   Mass.   200;    26   N. 

the  common  council.     Commonwealth  E.  Rep.  447;   10  L.   R.  A.  497  (1891), 

V.  Central  Pass.  Ry.  Co.,  52  Pa.  St.  506.  where    in   a    case    relating    to     elec- 

>  New  York  &  New  Jersey  Telephone  trie  light  wires  it  was  said  that  the 
Co.  V.  Township  of  East  Orange,  42  N.  statute  concerning  telegraph  lines 
J.  Eq.  490;  State  v.  Broome  pros.  v.  providing  that  the  mayor  and  alder- 
New  York  &  New  Jersey  Teleph.  Co.,  men  of  a  city  "shall  designate  the 
49  N.  J.  L.  624;  s.  c.  50  N.  J.  L.  432;  streets"  should  not  be  construed  to  be 
Winter  v.  N.  Y.  &  N.  J.  Teleph.  Co.,  51  imperative  so  as  to  take  away  the  con- 


32  ELECTRIC   WIRES  [§  6. 

has  been  held  that  the  city  has  no  right  to  prescribe  other  con- 
ditions and  to  refuse  permits  because  these  conditions  were  not 
accepted  and  that  a  mandamus  should  issue  to  compel  the  board 
of  improvements  to  grant  a  permit  for  the  construction  of  the 
line  along  the  streets  referred  to.' 

In  the  case  of  an  electric  railway  it  was  held  that  where  per- 
mission to  use  electricity  as  a  motive  power  had  been  granted  by 
the  legislature,  with  authority  to  erect  poles,  "  the  kind  and  pat- 
tern to  be  approved  by  the  common  council,"  the  council  was 
bound  to  approve  of  a  proper  kind  of  pole  and  could  not,  after 
approving  of  iron  poles  insist  on  the  company  giving  free  transfer 
tickets  in  consideration  of  being  allowed  to  use  wooden  poles.  The 
court  said  that  such  a  condition  was  in  conflict  with  the  statute 
providing  that  a  city  shall  not  revoke  a  consent  once  given,  nor 
deprive  a  company  of  rights  and  privileges  conferred.' 

§  6.  Electric  Lighting  Specially  Subject  to  Local  Control. — But 
under  a  statute  declaring  that  a  statute  directing  towns  to  des- 
ignate streets  for  telegraph  lines  should  apply  to  electric  light 
companies  **  so  far  as  applicable,"  it  was  held  in  Massachusetts 
that  it  was  not  imperative  upon  a  town  to  designate  streets  for 
electric  light  wires.  The  court  said  the  use  of  these  was  local, 
and  a  refusal  to  allow  them  in  the  streets  of  a  town  would  not 
defeat  a  business  extending  over  a  large  territory,  and  it  could 
not  be  supposed  that  the  legislature  intended  to  take  away  from 
the  local  authorities  the  power  to  decide  whether  wires  for  lights 
in  the  town  were  safe  and   proper  or  necessary.^     The  statute 

trol  of   the  city  over  its  streets  with  ing  Co.  v.   Jones   Bros.   Electric  Com- 

respect  to  telegraph  lines.  panj)  Super.    Ct.  Ohio,  23  W'kly  Law 

1  State   V.    Flad,    23   Mo.    App.   185,  Bull.  137. 

(1886).     One    of    the  conditions    im-  See  also   Brush  Electric  Light   Co. 

posed    related  to  the  use  of  the  posts  v.  Jones  Brothers  Electric   Light  Co., 

and  wires  by  another    company,  and  Hamilton    (Ohio)  Com.  Pleas,  23  W. 

the  other  limited  the  number  of  wires  L.  Bull.  329,  where  it  was  held  that  a 

to  such  as  were  absolutely  necessary,  franchise  must  be  obtained  under  Rev. 

'^  Electric   Ry.  Co.  v.  Grand  Rapids,  Stat.,  §§  2491,  3550,  3551,  although  the 

47  N.  W.  567;  84  Mich.  257,  (1890).  company  had   obtained  a  permit  from 

'  Suburban  Light  and  Power  Co.  v.  the  board  of  afTairs  in  pursuance  of  a 

Boston,  ID   L.  R.  A.  497,  with   note;  city  ordinance. 

26  N.  E.  Rep.  447,  (Mass.,  January  26,  Where  a   statute  provided   that  no 

1891).  telegraph     poles    should    be    erected 

There  is  a  statute  in  Ohio  providing  without  first   obtaining  a    designation 

for  the  joint  use  of  wires  by  electric-  of  the  streets  from  the  authorities  of 

light  companies.     The  statutory  con-  any  city   or  town   through  which  the 

ditions  are  construed  in  Hauss  Light-  line  should  pass,  it  was  held  in  New 


§  7-]  IN   STREETS   AND   HIGHWAYS.  23 

relating  to  telegraphs  declared  that  the  mayor  and  aldermen,  or 
selectmen  of  any  city  or  village  through  which  a  line  should  pass, 
"  shall  designate  the  streets  "  where  the  line  should  be  put  up, 
the  court  said  this  ought  not  to  be  construed  as  imperative,  nof 
as  taking  away  from  the  local  authorities  the  control  over  the 
streets. 

§  7.  How  Municipal  Consent  May  be  Given. — If  the  statute 
requiring  the  municipal  consent  specifies  how  the  consent  shall 
be  given,  the  mode  prescribed  must  be  followed.  If  the  statute 
gives  the  municipality  authority  to  exercise  certain  powers 
by  ordinance,  a  resolution  will  not  be  sufificient.'  Certain  form 
alities  with  respect  to  time  and  notice  are  required  for  the  passage 
of  an  ordinance,  and  to  permit  an  act  to  be  done  by  resolution  is 
to  dispense  with  these  formalities,  and  the  courts  therefore  will 
not  allow  common  councils  to  act  by  resolution,  when  an  ordi- 
nance is  required  by  the  charter  or  statute.  As  a  general  rule, 
if  a  statute  merely  requires  the  consent  of  the  common  council, 
and  is  silent  as  to  the  mode  in  which  it  shall  be  given,  a  resolu- 
tion is  suflficient  ;'  and  in  the  case  of  Halsey  v.  Rapid  Transit 
Street  Raikvay  Co.,  above  referred  to,  it  was  held  by  the  Vice- 
Chancellor  that  where  the  statute  provided,  that  with  the  consent 
of  the  common  council,  street  railway  companies  might  use  elec- 
tric motors,  this  consent  was  properly  given  by  resolution ;'  but 
the  better  opinion  seems  to  be,  and  it  was  distinctly  held  by  the 
Supreme  court  in  New  Jersey  with  reference  to  that  same  reso- 
lution that  where  the  power  conferred  by  the  charter  is  the  power 
to  pass  ordinances  for  regulating  streets,  the  consent  to  putting 
up  poles  and  wires  for  electric  railways  must  be  given  by  ordi- 

Jersey  that  the  question  was  not  so  ville,  45  N.  J.  L.  279;  State,  Pater- 
much  whether  the  town  was  incorpo-  son  v.  Barnett,  45  N.  J.  L.  62.  See, 
rated  as  whether  it  had  control  of  however.  Sower  v.  Philadelphia,  35  Pa. 
streets  as  distinguished  from  country  St.  231,  where  a  resolution  was  held  to 
roads.  N.  Y.  &  N.  J.  Teleph.  Co.  v.  be  in  fact  equivalent  to  an  ordinance. 
East  Orange,  42  N.  J.  Eq.  490;  Broome  ^  Dill.  Mun.  Corp.  4th  ed.,  §  307  and 
V.  N.  Y.  &  N.  J.  Teleph.  Co.,  49  N.  J.  notes.  Bigelow  v.  Perth  Amboy,  i 
L.  624.  Dutch.  25  N.  J.  L.  297 ;  State  v.  Jersey 
1  Dill.  Mun.  Corp.  4th  ed.,  §  307  and  City,  3  Dutch.  27  N.  J.  L.  493;  Green 
notes.  State,  Van  Vorst  v.  Jersey  City,  v.  Cape  May,  41  N.  J.  L.  45  ;  Burling- 
3  Dutch.  (27  N.  J.  L.)  493;  State,  Glea-  ton  v.  Dennison,  42  N.  J.  L.  165 ;  But- 
son  V.  Bergen,  33  N.  J.  L.  72;  State,  ler  v.  Passaic,  44  N.  J.  L.  171  ;  Halsey 
Hoboken  L.  &  I.  Co.  v.  Hoboken,  35  v.  Rapid  Transit  St.  R.  Co.,  47  X.  J. 
N.  J.  L.  205  ;  State,  Story  v.  Bayonne,  Eq.  380. 

35  N.  J.   L.  335  ;   State  v.  Paterson,  45  ^  In   Illinois  and  Iowa,  where  cities 

N.  J.  L.  267;  State,  Hunt  v.  Lambert-  have  power  to   grant  the   right   to  lav 
E.  W.-3 


34 


ELECTRIC   WIRES  [§  9- 


nance,  because  the  consent  is  in  fact  a  regulation  of  the  streets.' 
The  same  thing  had  already  been  decided  in  regard  to  the  con- 
sent to  laying  gas  pipes." 

§  8.  What  Are  the  "  Local  Authorities." — Where  the  statute 
required  the  consent  of  the  local  authorities  to  the  construction  of 
a  telegraph  line,  and  the  road  along  which  it  was  to  be  put  up 
was  in  the  control  of  a  turnpike  company,  it  was  contended  that 
the  consent  of  this  company  was  sufificient,  but  the  court  held 
that  by  "  local  authorities  "  were  meant  the  officers  of  the  city, 
town  or  village  whose  duties  and  powers  relate  to  the  super- 
vision, care  and  maintenance  of  the  streets  and  highways,  and 
that  in  this  case,  in  which  the  road  was  not  in  a  city  or  village, 
but  in  a  "town"  or  township,  z.  e.,  out  in  the  country,  the 
authorities  were  the  commissioners  of  the  highways.' 

It  has  been  held  in  New  Jersey,"  that  the  statute  requir- 
ing a  designation  of  the  streets  in  any  incorporated  city  or  town 
through  which  the  line  may  pass,  applies  to  streets  rather  than 
roads,  and  that  although  East  Orange  was  a  township,  yet,  as  it 
was  a  municipal  corporation  having  control  of  streets,  it  came 
within  the  meaning  of  the  statute. 

§  9.  Power  to  Eevoke  Franchise  and  Remove  Poles  and  Wires. — 
The  designation  of  streets,  if  once  acted  on,  is  not  revocable  by  a 
city.  A  company  having  by  legislative  authority  and  municipal 
consent  obtained  the  privilege  of  using  the  street  has  acquired  a 
franchise  which  is  valuable  property. 

The  legislative  permission  may  of  course  be  made  expressly 
revocable,  but  it  seems  that  municipal  consent  once  acted  upon 
by  the  construction  of  works,  becomes  a  binding  contract.  There- 
fore, if  lines  have  been  constructed  under  legislative  authority, 
and  with  such  municipal  consent  as  may  be  required,  the  munici- 
pal officers  cannot  remove  them  unless  the  maintenance  of  them 
has  been  made  expressly  subject  to  such  action. 

The  subject  of  legislative  and  municipal  contracts  and  fran- 
chises has  been  fully  discussed  in  the  standard  works  on  munici- 

railroad   tracks  in  the   streets,  it   has  Pass.  Ry.  Co.  (N.  J.  Sup.  Ct.,  January, 

been   held    that    permission    may   be  1892),  15  N.  J.  L.  J.  45. 

given  by  resolution.     Quincy  v.  C.  B.  '  Peoples'    Gaslight    Co.    v.   Jersey 

&  Q^R.  R.  Co.,  92  111.  21;  Merchants'  City,  46  N.  J.  L.  297. 

Union  Barb  Wire  Co.  v.  C.  B.  &  Q^  R.  '  /?e   Rochester  Electric  R.  Co.,  123 

R.  Co.,  70  Iowa  105.  N.  Y.  351 ;  46  Am.  &  Eng.  R.  Cas.  127. 

1  State,     Halsey     pros.    v.    Newark  *  The  State,  Broome  pros.  v.  N.  Y. 


§  10.]  IN   STREETS   AND   HIGHWAYS.  35 

pal  corporations  and  constitutional  law.     I  need  only  refer  here 
to  the  cases  directly  involving. the  use  of  electric  wires. 

§  10.  The  Same — Cases  Relating  to  Telegraph  and  Telephone  Wires. 
— In  Hudson  Telephone  Co.  v.  Jersey  City'  the  question  came  up 
squarely  before  the  Supreme  court  of  New  Jersey.  A  telephone 
company  was  authorized  by  statute  to  use  the  highways  along 
the  line  of  its  route,  upon  first  obtaining  from  the  incorporated 
cities  or  towns  a  designation  of  the  streets  in  which  the  poles 
should  be  placed  and  the  manner  of  placing  the  same.  An  or- 
dinance was  passed  by  the  common  council  of  Jersey  City  giving 
the  company  permission  to  erect  poles  or  lay  an  underground 
cable  in  certain  streets  on  certain  conditions.  The  company  set 
up  poles  along  the  route  marked  out  by  the  ordinance,  and  then 
the  common  council  repealed  the  ordinance.  This  last  action  of 
the  council  was  brought  before  the  Supreme  court  by  certiorari. 
The  court  (by  Reed,  J.)  said :  "  I  am  of  the  opinion  that  as  a 
general  rule,  a  designation  of  streets  by  a  city  gives  the  company 
an  irrevocable  right  to  use  the  streets  so  designated,  for  the  pur- 
poses  indicated  in  the  statute.  Certainly,  after  the  expenditure 
of  money  in  the  erection  of  poles,  made  in  reliance  upon  the 
municipal  designation,  the  company  obtains  a  vested  right  of 
which  they  cannot  be  stripped  by  a  subsequent  revocation 
of  such  designation.  The  notion  that  a  corporation  which,  under 
provisions  similar  to  the  present  act,  has,  upon  the  strength  of  a 
permission  to  use  a  certain  route,  spent  thousands  of  dollars  in 
laying  railway  tracks,  or  subterranean  cables,  or  in  erecting  posts 
and  stretching  wires,  is  at  the  mercy  of  the  city  authorities  con- 
tinually and  entirely,  is  not  to  be  entertained  for  a  moment,"  and 
it  was  held  that  the  power  reserved  by  the  legislature  to  repeal  all 
charters  did  not  apply  to  a  common  council,  and  that  as  the  act 
under  which  this  company  was  incorporated  conferred  no  power 
on  the  municipality  to  revoke  a  permission  once  granted,  the 
grant  was  subject  only  to  a  repeal  by  the  legislature,  and  "  when 
that  corporation  had  acquired  vested  rights  in  the  mode  desig- 
nated by  their  charter,  it  certainly  was  not  within  the  power  of  a 
common  council  to  strip  them  of  any  right  so  acquired.'"'     The 

&  N.  J.  Telephone  Co.  49  N.  J.  L.  revoke  its  permission  given  by  statu- 
634.  tory  authority  to  the  location  of  a 
*  49  N.  J.  L.  303,  (1887).  railroad  in  the  streets  of  a  city,  was  ex- 
'  "The  power  of  a  common  council,"  pressly  denied  in  the  case  of  the  Peo- 
says  Mr.  Justice  Reed  in  Hudson  Tele-  pies'  Passenger  Railway  Co.  v.  Bald- 
phone  Co.  V.  Jersey  City,  supra,  *'  to  win,  reported  in  37  Leg.  Int.  424,  and 


36  ELECTRIC  WIRES  [§  II. 

court  referred   to    Commonwealth    v.    Boston^   decided  by     the 
Supreme  judicial  court  of  Massachusetts. 

§  11.  The  Same — Other  Cases. — In  City  v.  Telegraph  and  Telephone 
Co.^  a  city  made  a  grant  by  ordinance  to  a  particular  company 
to  use  the  streets  for  telegraph  and  telephone  wires  upon  certain 
conditions  subject  to  such  ordinances  as  might  thereafter  be  passed, 
it  was  held  that  this  was  not  a  mere  revocable  permit  but  a 
binding  contract. 

In  Mutual  Union  Telegraph  Co.  v.  Chicago,^  a  telegraph  com- 
pany had  erected  poles  and  strung  wires  within  a  city  under  the 
permission  of  an  ordinance  which  provided  that  the  privilege 
should  expire  on  a  certain  day.  After  the  time  had  expired,  the 
mayor,  of  his  own  motion  and  without  notice,  proceeded  to  cut 
down  the  poles.  The  court  granted  an  injunction  against  this, 
but  said,  that  if  proper  notice  had  been  given,  and  the  mayor  had 
been  authorized  by  the  common  council,  his  acts  would  have  been 
lawful.  "  I  can  have  no  doubt,"  said  Judge  Drummond,  "  that  it 
is  entirely  competent  for  the  city  authorities,  unless  they  are 
bound  by  some  absolute  contract  permitting  the  poles  and  wires 
to  stand  as  they  are,  to  have  them  removed,  and  put  an  end  to 
such  unsightly  obstructions  as  these  poles  now  are  in  our  streets. 
There  must  be  power,  I  think,  somewhere,  to  cause  them  to  be 
removed  and  to  regulate  and  control  the  manner  in  which  tele- 
graph lines  shall  enter  and  pass  through  the  city." 

In  City  of  Hannibal  v.  Missouri  and  Kansas  Telegraph  Co.,*  it 
was  held  by  the  St.  Louis  court  of  Appeals,  that  a  city  will  not 
be  allowed  to  enforce  an  ordinance  peremptorily  directing  a  tele- 
phone company  to  re-locate  its  poles  in  an  impracticable  manner, 
after  the  poles  have  been  located  and  allowed,  when  it  is  neither 
averred  nor  shown  that  the  existing  location  incommodes  the 
public,  nor  that  there  was  any  good  reason  for  the  removal  of 
the  poles. 

The  subject  of  municipal  consent  involves  a  discussion  of  the 
extent  and  meaning  of  the  power  of  cities  to  make  police  regula- 
tions and  other  cases  involving   incidentally  the  power  to  give, 

in  the  case  of  Brooklyn  Central  R.  R.  ^  i6  Fed.  Rep.  309  (18S3).     See  also 

Co.  V.   Brooklyn   City   R.   R.   Co.,   32  Philadelphia  v.  Western  Union  Teleg. 

Barb.  358."  Co.  11    Phila.   Rep.   327;  35  Leg.  Int. 

1  Commonwealth  V.  Boston,  97  Mass,  129  (1876),  referred  to  in  Chapt. 
555.     See  Chapter  V,  §  3.  IV,  5. 

2  40  La.  Ann.  41  (1888).  *  31  Mo.  App.  23  (1888). 


^  jj  -1  IN   STREETS  AND   HIGHWAYS.  37 

withhold  or  withdraw  consent  will  be  considered  in  the  next 
chapter,  in  which  some  of  the  cases  already  cited  must  be 
referred  to  again. 


38 


ELECTRIC  WIRES 


CHAPTER  IV. 

MUNICIPAL   CONTROL— POLICE   REGULATIONS. 

§  1.  General  Power  of  Police  Regulation    with  Respect  to   Poles 

and  Wires.  —  Even  though  the  legislative  grant  is  not  made 
expressly  subject  to  municipal  control,  or  the  assent  of  the  local 
authorities,  the  grant  must  be  taken  to  be  subject  to  the  general 
control  of  municipal  corporations  over  streets.'  Under  the 
ordinary  power  to  regulate  streets,  and  in  the  absence  of  extra- 
ordinary immunities  conferred  on  the  company  by  its  charter, 
city  governments,  no  doubt,  have  the  right  to  supervise  and  con- 
trol the  erection  of  telegraph  lines  and  all  lines  of  electric  posts 
and  wires  in  the  streets,  with  a  view  to  public  safety  and  conveni- 
ence and  to  see  to  it  that  the  poles  are  not  so  placed  as  to  cause 
unnecessary  obstruction,  that  the  wires  are  strung  so  high  as  not  to 
interfere  with  public  travel,  and  that  the  system  is  so  constructed 
as  not  to  be  dangerous.^  They  may  prescribe  the  size  and  shape 
and  materials  of  the  poles ;  they  may  designate  the  streets  along 
which  the  lines  shall  go,  and  require  a  statement  or  map  showing 
the  location  of  the  several  poles  to  be  submitted  to  the  proper 
officers.  In  short,  they  may  regulate  the  manner  of  the  use  of 
the  streets,  and  take  care  that  the  power  granted  by  the  legisla- 
ture to  use  the  streets  for  these  purposes  is  so  used  as  not  to 
interfere  with  the  other  lawful  uses  of  the  streets,  and  not  to 
cause  danger  or  inconvenience  to  the  public. 

§  2.  Cases  on  This  Point  Relating  to  Telegraph  Lines  in  Cities. — 
Even  in  a  case  in  which  immunity  v/as  claimed  by  a  telegraph 
company  as  carrying  on  commerce  between  the  states,  Drum- 
mond,  J.,  said  :  "  Notwithstanding  telegraph  lines  may  be  instru- 
ments of  commerce,  a  city  has  the  right,  as  I  believe,  to  determine 
how,  in  what  manner  and  upon  what  conditions  a  telegraph  com- 
pany shall  enter  and  pass  through  it  for  the  purpose  of  allowing 
the  citizens  of  the  country  to  communicate  by  telegraph  one 
with  another."^ 

In  PhiladclpJiia  v.  Western   Union   Telegraph  Co.*  it  was  held 

1  2  Dill.  Mun.  Corp.  4th  ed.  §  680.  *  Mut.   Union  Teleg.  Co.  v.  Chicago, 

i^  2  Dill.  Mun.  Corp.  4th   ed.  §   698,  16  Fed.  Rep.  309  (18S3).  See  Chapt.  Ill, 

and  note  on   p.  830;   Am.  Un.  Teleg.  §  11,  where  this  case  is  more  fully  stated. 

Co.  V.  Town  of  Harrison,  31  N.  J.  Eq.  *ii   Phila.  Rep.  (Pa.)  327;   33  Leg. 

627,  630.  Int.  129  (1875). 


g  3-]  IN   STREETS   AND   HICmVAYS.  39 

that  cities  have  the  right  to  regulate  the  construction  of  tele- 
graph lines  within  their  limits,  and  to  insist  that  the  erection  of 
them  shall  be  under  the  supervision  of  the  superintendent  of  the 
police  and  fire  alarm  telegraph.  All  grants  of  power  to  private 
corporations  to  carry  on  business  in  Philadelphia  were  made,  the 
court  said,  upon  the  implied  condition  that  they  should  be  sub- 
ject to  any  such  reasonable  restriction  as  the  city  might  think 
necessary,  and  that  they  should  obey  reasonable  ordinances;  and 
it  was  held  that  the  company  not  having  applied  to  the  superin- 
tendent for  directions,  had  no  right  to  put  up  its  lines.  The 
court  said  the  city  made  no  claim  to  prevent  the  running  of  the 
line  biit  only  to  supervise  and  direct  it  and  to  require  plans  and 
locations  to  be  submitted,  and  this  was  reasonable  and  proper.  But 
v/hile  the  court  thought  underground  wires  were  entirely  practi- 
cable, it  said  that,  as  the  legislature  had  authorized  the  use  of 
both  methods  of  construction,  it  was  not  for  the  court  to  confine 
the  company  to  the  use  of  only  one. 

More  recently  it  was  held  by  the  Supreme  court  of  Pennsyl- 
vania,' that  the  city  of  Philadelphia  has  the  right  as  a  matter  of 
police  regulation  to  supervise  and  control  by  ordinance,  the  erec- 
tion of  poles  and  wires  in  the  streets. 

A  municipal  ordinance  prohibiting  any  person  from  suspend- 
ing wires  used  for  conducting  electricity  over  or  across  the  roof 
of  any  building  has  been  held  to  be  within  the  proper  powers  of 
a  city,  in  a  case  in  which  it  appeared  from  the  evidence  that  the 
stretching  of  these  wires  over  buildings  was  extremely  dangerous, 
both  as  being  likely  to  originate  fires  and  as  interfering  with  the 
extinguishment  of  fires  otherwise  originated.  The  court  said, 
moreover,  "  Indeed  the  danger  is  a  matter  of  common  knowl- 
edge. We  might  almost  as  well  require  strict  proof  of  the  dan- 
ger of  storing  gunpowder  or  dynamite  in,  under,  upon  or  about 
our  houses.  Even  if  these  wires  can  be  so  put  up  and  insulated 
as  to  be  safe  in  the  mode  suggested  by  one  of  the  complainant's 
witnesses.  Prof.  Keith,  it  has  not  been  done.*" 

§  3.  Cases  Relating  to  Electric  Light  Wires. — In  the  case  of  wires 
for  electric  lighting  which  is  a  matter  of  local  concern,  larger 
discretion  is  ordinarily  left  with  the  local  authorities  than  with 
respect  to  the  telegraph  and  telephone,  which  are  of  wider  inter- 
est and  affect    the  intercourse  between  different  towns,  and  it 

1  Western  Union  Teleg.  Co. v.  Phila-     Eng.  Corp.  Cas.  40,  with  note;  22  W. 
delphia   (Pa.    Supr.    Ct.    January    23,     N.  C.  39. 
iSSS),   12  All.    Pvcp.   144;    21    Am.    &        '^  Electric    Impr.    Co.  v.  San   Fran- 


40  ELECTRIC    WIRES.  [§  4- 

has  recently  been  held  by  the  Supreme  Judicial  Court  of  Massa- 
chusetts' that  local  authorities  have  the  power  to  decide  whether 
wires  for  local  lighting  are  safe  and  proper  and  necessary,  and 
although  the  statute  relating  to  telegraphs  gave  permission 
for  the  erection  of  poles  and  wires,  and  said  the  selectmen  shall 
designate  the  streets  for  the  purpose,  and  another  statute 
declared  that  this  act  "so  far  as  applicable"  should  apply  to 
electric  light  companies,  yet  it  was  held,  that  the  act  was  not 
imperative  with  respect  to  an  electric  light  company  within  the 
limits  of  a  town,  because  its  business  was  purely  local,  and  a 
refusal  would  not  defeat  business  extending  over  a  large  territory  ; 
and  the  court  said  that  even  with  respect  to  telegraphs,  the  words 
"  shall  designate,"  could  not  be  taken  to  mean  that  the  local 
authorities  were  deprived  of  their  control  of  the  street. 

§  4.  Extent  and  Meaning  of  the  Power  to  Impose  License  Fees. — The 
power  to  regulate  may  imply  the  power  to  license,  but  the 
license  fees  must  be  imposed  only  for  the  purpose  of  regulating, 
and  must  be  only  such  as  are  reasonably  necessary  for  that  pur- 
pose. The  power  cannot  be  used  for  the  purpose  of  revenue  ; 
authority  to  regulate  and  to  license  does  not  confer  the  power  of 
taxation.^ 

Authority  for  these  propositions  may  be  found  in  any  text- 
book on  municipal  corporations,  and  I  will  only  cite  cases  relat- 
ing especially  to  posts  and  wires  in  the  streets. 

In  the  Pennsylvania  case,  above  referred  to,"  in  which  it  was 
held,  that  the  city  had  a  right  to  control  the  erection  of  telegraph 
poles  in  the  streets,  the  court  held,  that  a  license  fee  of  five  dol- 
lars for  each  telegraph  pole,  and  one  dollar  and  a  half  for  each 
mile  of  wire,  might  be  sustained  as  a  police  regulation,  although 
not  as  a  tax. 

In  other  cases  in  Pennsylvania,  it  was  held,  that  a  city  may 
regulate  the  erection  and  maintenance  of  poles  for  electric  wires, 
and  impose  a  reasonable  license  fee  for  the  same,*  and  in  one  of 
these,  the  court  said  the  reasonableness  was  a  question  for  the  court, 

Cisco,  45   Fed.  Rep.  593.     The  same  v.  Harrison,  31   N.   J.   Eq.  627,    per  Van 

Scannell,   Ibid.   596;   9  R7.   Corp.    L.  Fleet  V.  C. 

J.  494;  13  L.  R.  A.  131  (1S91).  ^  Western  Union  Teleg.  Co.  v.Phila- 

1  Suburban   Light  &   Power   Co.  v.  delphia   (Pa.   Supr.    Ct,    January  23, 

Boston,  26  N.  E.  Rep.  (Mass.)  447;  10  18SS),  12  Atl.  Rep.  144;  21  Am.  &  Eng. 

L.    R.  A.  497   (1891).     As  to   electric  Corp.   Cas.  40;  .yw/ra,  p.  39,  n.  i. 

wires  of  any  kind   over   the  roofs   of  *  Lancaster   v.    Edison    Electric    111. 

houses,  see  §  2,  supra.  Co.,  8  C.  C.  Rep.  178;   Electric  Light 

*  Am.  Union  Teleg.  Co.  v.  Town  of  Co.  v.  City,  4  Del.  (Pa.)  117,  s.  c.  Lack. 


§  5-]  IN   STREETS   AND    HIGHWAYS.  4I 

the  burden  being  on  the  defendant  to  show  that  it  was 
unreasonable.'  In  this  case,  the  ordinance  required  the  owners 
of  all  electric  light  poles  to  number  and  initial  each  pole,  and  to 
take  out  a  license  on  payment  of  fifty  cents  a  year  for  each  pole, 
under  a  penalty  of  five  dollars  for  each  and  every  offense.  It  was 
held  that  the  ordinance  was  valid,  but  that  a  company  refusing  to 
mark  and  number  its  poles  and  pay  the  license  fees  on  each  pole, 
was  guilty  of  but  one  offense,  and  subject  to  only  one  penalty. 
In  one  of  these  cases  the  license  fee  was  paid  by  giving  the 
city  one  free  light  out  of  every  thirty,  and  this  was  held  valid. ^ 

In  another  case  in  P-ennsylvania,  an  ordinance  passed  by  a 
borough,  imposing  a  license  fee  on  telegraph  poles,  was  held 
invalid.' 

In  SL  Louis  V.  Western  Union  Teleg.  Co.^  it  was  held  by  Judge 
Thayer  of  the  United  States  Circuit  Court,  that  an  ordinance 
imposing  a  license  fee  on  telegraph  poles  was  a  tax,  and  was  not 
within  the  power  of  the  city  to  regulate  telegraph  companies. 

§  5.  The  Power  to  Regulate  Does  not  Imply  the  Power  to  Lay  an 
Embargo. — This  power  to  regulate  is  not,  however,  a  power  to 
lay  an  embargo.  If  a  legislative  franchise  has  been  granted,  a 
municipal  corporation  cannot  under  the  guise  of  a  regulation 
prevent  the  exercise  of  the  franchise.  The  power  must  be  exer- 
cised so  as  to  regulate  the  manner  of  the  use  of  the  streets,  and 
not  so  as  to  deprive  a  company  of  a  franchise  conferred  upon  it 
by  the  legislature.^ 

In  a  recent  case  in  New  Jersey*  the  board  of  works  of  Jersey 

Jur.  177;  Teleg.  Co.  v.  City,  22  W.  N.  Justice  Depue,  in  the  former  case,  "in 

Cas.  (Pa.)  39;  3  Lane.  (Pa.)  164.  State,  Benson  pros.  v.  Hoboken,  33  N. 

'  Lancaster   v.    Edison    Electric    111.  J.  L.  280,"   and  the    same  judge   dis- 

Cc,  8  C.  C.  Rep.  (Pa.)  178.  cusses  the   matter  fully  in  the   North 

^Electric  Light  Co.  v.   City,  4  Del.  Hudson  Co.  Railway  case  above  cited 

117,  s.  c.  Lack.  Jur.  177.  and  refers  to  many  cases  and   the  fol- 

^  Borough  V.  Teleph.  Co.,  22  W.  N.  lowing  text-books  where  the  cases  are 

Cas.  572.  collected.     Boroughs  on  Taxation,  392; 

*39  Fed.  Rep.  59  (1891).  Cooley  Const.  Lim.,  201  ;   i  Dill.  Mun. 

^  North   Hudson  Co.  Railway  Co.  v.  Corp.  4th  ed.,  §  291  ;   Cooley  on  Taxa- 

Hoboken,  41  N.  J.  L.  71   (1879);  Muh-  tion,  40S.     See,  however,  for  a  case  on 

lenbrinck    v.  Commissioners,  42  N.  J.  the  other  side  of  the  line,  Flanagan  v. 

L.  364.  Plainfield,  44  N.  J.  L.  iiS,  where  it  was 

"  The  distinction  between  the  power  held  that  the  power  to  tax  for  revenue 

of   taxation    for    revenue    and    police  was    conferred    with     the    power    to 

powers    which    are   granted    for    the  license  the  sale  of  liquor, 
maintenance  of  order  and  the  admin-        ®  Jersey    City   v.   Jersey     City    Ber- 

istration  of   the   internal   aflFairs  of   a  gen  St.  Ry.  Co.,  N.  J.  Law  Journal  for 

municipality,  is  pointed  out,"  says  Mr.  April,  1802.     See  also  Chapt.  X. 


42  ELECTRIC   WIRES  [§  7. 

City  applied  to  the  chancellor  for  an  injunction  against  the  erec- 
tion of  poles  in  the  streets  and  the  operation  of  a  street  railway 
by  the  overhead  or  trolley  system  of  furnishing  electricity.  It 
appeared  that  the  legislature  by  general  law  had  authorized  the 
use  of  electric  motors  on  obtaining  the  consent  of  the  municipal 
authorities  and  that  the  common  council  had  given  their  con- 
sent to  the  use  of  the  trolley  system.  The  chancellor  denied  the 
injunction,  but  when  the  Board  of  Works  insisted  that  the  line 
was  being  so  constructed  as  to  be  dangerous,  he  allowed  testi- 
mony to  be  presented  to  show  that  the  manner  of  construction 
was  improper  but  not  to  discredit  the  trolley  system  itself,  be- 
cause a  grant  to  use  this  had  already  been  made  by  the  legislature 
with  the  consent  of  the  common  council. 

§  6.  The  Power  to  Regulate  Does  not  Imply  the  Power  to  Fix  Tolls 
and  Eates. — The  power  to  regulate,  does  not  include  the  power  to 
fix  tolls  or  charges.  The  State  can  regulate  charges,  and  it  may 
delegate  to  a  Municipality  the  power  to  do  so,  but  even  though 
the  Legislature  (or  the  Constitution  as  in  the  case  of  the  city  of 
St.  Louis)  has  given  the  city  the  most  plenary  powers  for  the 
regulation  of  the  use  of  the  streets  for  railroads  and  telegraphs 
and  electric  wires  generally,  the  power  to  limit  charges  is  not 
conferred.  This  is  not  a  regulation  of  the  use  of  the  streets,  but 
an  interference  with  the  franchise,  or  right  to  receive  tolls.  It 
has  been  so  held  by  the  Supreme  Court  of  Missouri  with  respect 
to  the  Bell  telephone  wires  in  the  city  of  St.  Louis,  which  has 
almost  legislative  powers  over  the  streets.' 

In  a  recent  case  in  Michigan,'  where  a  common  council  had 
granted  permission  to  a  street  railway  company  to  operate  its 
line  by  electricity,  it  was  held  that  the  council  could  not  there- 
after in  designating  the  kind  of  poles  that  should  be  used,  require 
the  company  to  furnish  free  transfer  tickets  in  considera- 
tion of  obtaining  the  right  to  use  a  particular  kind  of  pole,  not- 
withstanding the  right  to  make  further  regulations  had  been 
reserved.  This  decision,  however,  was  made  under  a  statute 
forbidding  Municipalities  to  revoke  a  consent  once  given. 

§  7.  Condition  That  Other  Companies  Shall  be  Allowed  to  Use  the 

^  St.   Louis  V.   Bell   Teleph.  Co.,  98  where  it  was  held  that  a  city  might 

Mo.  632  (iSSS).  pass   an    ordinance    forbidding    horse 

For  a  recent  decision  on  the  power  cars  to  be  run  without  conductors. 
of  common   councils   to   regulate   the  *  Electric    Railway    v.   Grand  Rap- 
use  of  streets,  see  Trenton  Horse  R.  ids,    84   Mich.   257;    47    N.   W.    Rep. 
R.  Co.  V.    Trenton,  53    N.  J.   L.   132,  567. 


I  8.]  IN   STREETS  AND   HIGHWAYS.  43 

Same  Poles. — There  seems  to  be  some  question  whether  it  is  com- 
petent for  cities  to  insist  that  the  right  to  set  up  poles  and  wires 
in  the  streets  shall  be  subject  to  a  condition  that  other  compa- 
nies shall  have  the  privilege  of  using  the  same  poles  on  paying  a 
proper  rental.  In  Ohio  there  is  a  statute  giving  the  probate 
courts  power  to  decide  what  municipal  franchises  shall  be 
granted,  and  in  what  manner,  and  while  it  has  been  decided  that 
these  courts  may  grant  the  right  to  put  up  poles  and  wires,  subject 
to  the  rights  granted  by  the  courts  to  other  companies,  to  use 
the  same  poles  on  paying  a  fair  rental,  it  has  also  been  held  that 
a  company  obtaining  its  rights  under  a  municipal  ordinance, 
could  claim  no  right  to  use  the  poles  under  the  decision  of  the 
Probate  Court,  and  that  the  Board  of  Public  AfTairs  had  no  power 
to  impose  such  a  condition.' 

§  8.  Municipal  Rights  in  the  Streets  Are  Not  Those  of  an  Owner  bnt 
Are  Held  For  Public  Purposes. — The  rights  of  the  Municipality  in 
the  streets  are  not  like  those  of  individual  land  owners  in  their 
lands.  They  have  no  right  as  owners  of  the  soil  to  object  to  tlie 
presence  of  the  poles  and  wires,  but  they  act  only  as  guardians  of 
the  public  easement.  Accordingly  it  was  held  in  New  Jersey,  in 
a  case  where  the  poles  were  on  private  lands,  and  only  the  wires 
were  over  the  streets,  that  no  injunction  would  be  granted  where 
it  appeared  that  the  wires  hung  twenty-five  feet  from  the  ground, 
and  that  the  authorities  had  not  even  considered  the  question 
whether  they  were  a  nuisance.'' 

Unless  the  land  in  the  streets  has  been  conveyed  to  the  city, 
the  fee  is  ordinarily  in  the  owner  of  the  adjoining  lands,'  and 
when  land  is  dedicated  or  condemned  for  a  highway,  or  even  taken 
for  a  turnpike,  the  title  generally  remains  in  the  existing  owners 
of  the  land,  and  it  is  only  the  street  or  road  as  such,  that  is 
vested  in  the  public  authorities,  and  it  is  held  in  trust  for  use  as 
a  street." 

^  Hauss  Lighting  Co.  v.  Jones  Bros,  must  still  obtain  a  grant  or  franchise 

Electric  Co.,  Ohio  Supr.  Ct,  Special  under  the  Statute.    R.  S.  §§  2491,  3550 

Term,    23  W.  L.  Bull.   137.     See  also  and  351. 

Brush    Electric    Light   Co.    v.    Jojies  '^  Am.  Union  Teleg.  Co.  v.  Town  of 

Brothers  Electric  Co.,  Hamilton  Com.  Harrison,  31  N,  J.  Eq.  627. 

Pleas  (Ohio),  23  W.  L.  Bull.  329,  where  "3   Kent's  Comm.  434.     See  note   2, 

it  was  held,  that  a  company  having  ob-  Chapt.  VII,  §  5,  infra. 

tained  a  decree  of  the   probate  court  *  In  Davison  v.  Gill,  i  East  69,  Lord 

and  a  permit  from  the  Board  of  Public  Kenyon    said  :  "As   to  the   consent  of 

Affairs    to    use     poles    on    paying    a  the   trustees  of  a   turnpike   road,  the 

proper   rental    under    tht   ordinance,  soil  was  not  vested   in    them,  but  re- 


44  ELECTRIC   WIRES  [§  8. 

In  Cover  dale  v.  Charlton,^  it  was  held  by  the  English  Court 
of  Appeal  that  under  an  act  providing  that  the  street  should 
vest  in  the  district  board,  the  property  in  the  street  so  far 
vested  in  the  board,  that  it  could  demise  the  right  to  depasture 
cattle  there,  so  far  as  to  give  the  lessee  a  right  of  action  against 
a  wrongdoer. 

In  Wandsworth  Board  of  Works  v.  United  Telephone  Co.,'  an 
action  was  brought  by  a  local  board,  against  stretching  telephone 
wires  over  and  across  a  street.  The  wire  was  fastened  to  chim- 
ney tops  and  passed  over  the  street  in  several  places,  and  in  some 
cases  at  a  very  acute  angle.  The  wire  was  nowhere  less  than 
thirty  feet  from  the  ground.  Stephen,  J.,  found  that  the  wire 
was  not  a  nuisance  to  the  highway,  and  that  in  the  ordinary 
course  of  events  it  was  likely  to  cause  no  perceptible  danger  to 
the  public,  although  a  violent  storm  might  possibly  blow  it  down. 
He  held,  however,  that  the  local  board  as  owners  of  the  soil,  had 
an  absolute  right  to  prevent  the  defendants  from  suspending 
wires  over  the  street,  upon  the  principle  that  the  air  above  the 
roadway  was  as  much  their  property  as  the  roadway  itself.  This 
decision  was  reversed  in  the  Court  of  Appeal  and  it  was  held,  that 
the  Board  of  Works  had  only  such  title  as  was  given  it  by  act 
of  Parliament,  and  that  under  an  act  declaring  that  the  streets 
should  "  vest  in  and  be  under  the  management  and  control  of 
the  vestry  or  district  board,"  the  title  to  the  streets  was  given  to 
the  board  so  long  as  the  land  remained  a  street,  but  that  the 
word  street  did  not  include  an  indefinite  right  to  the  soil 
downward,  and  to  the  air  upward,  but  only  the  surface  and  so 
much  above  and  below  it  as  was  necessary  and  usual  to  be  used 
for  the  protection  of  the  enjoyment  of  the  public.  Bowen,  L.  J., 
said,  "  All  that  I  feel  called  upon  to  say,  is  that  I  am  satisfied 
that  the  Board  of  Works  have  not  any  proprietary  interest  above 
the  street,  except  what  is  necessary  to  protect  the  street  and  the 
traffic  from  interruption  or  danger,  or  to  enable  them  to  exercise 
their  powers  in  the  street." 

It  was  held,  that  the  learned  judge  erred  in  applying  the  doc- 
trine of  Coverdale  v.  Charlton,  so  as  to  extend  the  area  which 
was  vested  in  the  Board  of  Works,  beyond  the  area  of  user  and 
made  it  include  the  area  of  possible  interference. 

mained   in  the  persons  -who  -were  en-  Salisbury  v.  Great  Northern   Ry.  Co., 

titled  to  it  before  they  were  appointed.  5  C.  B.  (N.  S.)  174-208. 

The  trustees  have  only  the  control  of  ^  4  Q^  B.  D.  104  (187S). 

the  highways."     See  also    Marquis  of  ^9  Q^  B.  D.  904  (1884). 


§  I.]  IN  STREETS  AND   HIGHWAYS.  45 


CHAPTER  V. 

POLES  AND    WIRES  AS  AN    OBSTRUCTION    OF   THE    HIGHWAY — 
HOW   FAR   JUSTIFIED    BY   GRANT   OF   FRANCHISE. 

§  1.  Poles  Erected  in  the  Streets  Without  Legislative  Sanction  are 
Nuisances. — Assuming  that  posts  and  wires  have  been  set  up  in 
the  street  under  legislative  sanction  and  with  the  consent  of  the 
local  authorities,  the  question  remains  how  far  this  permission 
will  justify  the  person  maintaining  them,  in  case  of  an  injury 
arising  from  the  mere  presence  of  the  post  in  the  highway.  The 
question  of  negligent  construction  or  use  is  a  different  matter, 
and  will  be  considered  later.'  The  question  noAv  is,  how  far  the 
mere  obstruction,  such  as  it  is,  is  justified  by  the  permission  to 
make  it. 

Posts  erected  in  a  highway  without  the  anthority  of  law,  or  at 
least  of  ancient  custom,  are  nuisances,  and  may  be  enjoined  by 
any  one  suffering  a  special  injury,  or  they  may  be  abated,  and  those 
who  set  them  up  or  maintain  them  are  subject  to  indictment.'* 

In  an  old  English  case,^  on  an  indictment  for  erecting  telegraph 
poles  in  the  highway,  the  court  maintained  the  right  of  the  public 
to  the  whole  road,  and  said  the  pole  was  a  nuisance,  although  it 
was  not  in  the  metalled  portion  of  the  road  nor  in  the  footpath. 
The  construction  of  the  line  had  been  authorized  by  the  board 
of  guardians,  but  it  did  not  appear  that  it  was  sanctioned  by  act 

1  Chapter  XV.  son  on  Torts,  §  313;   Dillon  on  Mun. 

^  An  unauthorized  construction  of  a  Corp.,  §  6q8,  4th  ed.     See  also,  as  to  tel- 

railroad  in  a  street  is  a  public  nuisance,  egraph    lines.    Gay  v.   Mutual    Union 

but  that  which  is   legally   authorized  Teleg.  Co.,  22  Mo.  App.  4S5;  Irwin  v. 

cannot  be  a  nuisance.     Davis  v.  Mayor  Great  South  Teleg.  Co.,    37  La.  Ann. 

of  New  York,  14  N.  Y.  506;  Wetmore  63;     Julia    Building    Asso'n     v.    Bell 

V.    Story,    22    Barb.    414;    Milhau    v.  Teleph.   Co.,   88  Mo.   25S;    Hewett  v. 

Sharp,  15  Barb.  193;  Drake  v.  Hudson  West.  Union  Teleg.  Co.,  4  Mackay  (D. 

River  R.  R.   Co.,  7   Barb.   508;   Mac-  0424(1886). 

Farland  v.  Orange  &  Newark   Horse  -^  Regina  v.   United   Kingdom   Elect. 

Car  R.  R.  Co.,  13  N.  J.  Eq.  (2  Beas.)  Teleg.  Co.,   9   Cox    Cr.   Cas.  137-174, 

17.     See  also  Arbenz  v.  Wheeling  &  quoted    in   Redfield  on   Carriers,   sec. 

Harrisburg  R.  R.  Co.,  5  L.  R.  A.  371,  574,    note.     Reported   also   in   6   Law 

and  note  citing  cases;  Randle  V.  Pacific  Times  Rep.  N.  S.   378;  31    Law   Jour. 

R.  R.  Co.,  65  Mo.  362;  Chicago  and  E.  (Magist.    Cas.)    166;    13  Fost.  &  Finl. 

I.  R.  Co.  V.  Loeb.  118  111.  203,  5  West.  73;  8  Jur.  N.   S.  1153;    10   Wkly.    Rep. 

Rep.  893.     See  also  Chapter  XV.  538. 

Elliott  on  Roads,  Chapt.  24;  Addi-  In  an  early  case  in   England  an   in- 


46  ELECTRIC   WIRES  [g  2. 

of  Parliament.  This  fact  is  not  mentioned  in  the  report,  but, 
except  on  this  supposition,  the  ruling  is  not  in  harmony  with 
the  American  decisions. 

§  2.  Poles  set  Up  with  Express  Legislative  Sanction  are  not 
Nuisances.  —  The  legislature  has  the  right  to  authorize  the 
obstruction  of  a  street  in  any  way  it  may  please,  subject  only 
to  making  compensation  for  injury  to  rights  of  private  property, 
and  an  obstruction  expressly  and  specifically  authorized  by  the 
legislature,  cannot  be  illegal  nor  amount  to  a  public  nuisance. 

If  poles  have  been  set  up  under  legislative  sanction  and  under 
the  direction  of  the  municipal  authorities,  they  cannot  afterwards 
be  declared  by  those  authorities  to  be  nuisances.  "  The  power  to 
remove  obstructions  from  the  streets,"  says  Mr.  Justice  Reed  in 
a  case  in  New  Jersey,"  "is  confined  to  nuisances,  and  any  object 
which  has  a  legal  right  in  the  street  is  beyond  the  power  of  the 
common  council."  And  it  was  held  by  the  supreme  court  in 
that  case,  that  a  common  council  cannot  revoke  the  designation 
of  the  streets  once  made  under  a  statute  providing  for  the 
construction  of  a  telephone  line. 

In  Commonwealth  v.  Boston^  municipal  officers  undertook  to 
remove  telegraph  poles  on  the  ground  that  they  were  so  located 
as  to  cause  inconvenience  to  the  public.  It  was  held  that  the 
specifications  and  decisions  of  the  mayor  and  aldermen,  made  and 
recorded  in  accordance  with  General  Statutes,  Chapter  64,  §  3, 
determining  the  kind  of  poles  and  their  location  in  the  highway, 
were  conclusive  upon  the  rightfulness  of  their  erection,  so  that 
they  cannot  be  lawfully  removed  by  the  town  or  municipal 
officers,  or  be  treated  as  a  nuisance. 

So  also  in  Young  v.  Yarmouth^  it  was  held  in  Massachusetts 
that  where  a  statute  authorized  the  construction  of  a  telegraph 
line,  and  the  poles  had  been  located  in  pursuance  of  the  act,  by 
the  selectmen  of  the  town,  the  decision  of  these  officers  was 
conclusive  and  was  a  complete  justification  of  the  town  in  an 
action  against  it  for  injuries  arising  out  of  an  alleged  obstruction 
of  the  highway. 


junction  against  maintaining  wires  in  583;  31  L.  J.  (Ch.)  329;  lo  Wkly.  Rep. 

tubes  in  the  highway  was  refused  until  167. 

the  question  of  right  to  maintain  them  ^  Hudson  Teleph.  Co.  v.  Jersey  City, 

had  been  settled  at  law.     Atty.  Gen.  v.  49  N.  J.  L.  303-307   (1887).      See   also 

United    Kingdom    Elect.   Teleg.    Co.;  Chapters  III,  XV. 

Rolls  Court,  Sir  John  Romilly,  M.  R.,  -97  Mass.  555  (1867). 

Nov.  1861,  30  Beav.  287;  8  Jur.  N.  S.  '9  Gray  3S6. 


§  3-]  IN   STREETS   AND    HIGHWAYS.  47 

§  3,  General  Authority  does  not  Authorize  Dangerous  Obstructions. — 

Although  an  obstruction  expressly  authorized  by  the  legislature 
cannot  be  regarded  as  a  nuisance,  yet  it  is  usual  to  make  the 
privilege  of  using  the  streets  for  telegraph  and  electric  light 
lines,  expressly  subject  to  the  condition  that  the  poles  shall  be 
so  placed  as  not  to  interfere  with  public  travel ;  and  the  courts 
are  inclined  to  construe  all  such  grants  as  subject  to  the  implied 
condition  that  the  poles  shall  not  be  so  located  as  to  be 
dangerous. 

But  it  has  been  held,  that  even  though  there  be  a  gen- 
eral authority  to  set  up  a  line  of  posts  and  wires,  the  ques- 
tion whether  a  post  in  the  highway  is  dangerous  to  travelers, 
may  be  left  to  a  jury  to  determine  in  an  action  for  damages 
caused  by  a  collision  with  a  horse  and  wagon.'  The  court  said 
that  a  plea  of  license  from  the  municipal  authorities  under 
legislative  power  was  not  good,  and  that  the  validity  of  the 
ordinance  was  subject  to  the  judgment  of  the  jury  on  the 
question  whether  the  pole  as  located  was  dangerous  to  travelers 
on  the  street.  Where,  however,  in  a  complaint  claiming  damages 
to  a  horse  and  wagon  which  ran  into  a  telegraph  pole,'  it 
appeared  that  the  poles  were  placed  as  near  the  fence  as  they 
could  be  put  without  having  the  cross-arms  encroach  upon  private 
property,  and  that  although  they  v/ere  along  the  level  highv/ay 
without  a  ditch  between,  yet  there  were  three  traveled  tracks, 
and  the  poles  were  set  so  as  not  to  be  an  obstruction,  it  was  held 
on  demurrer  that  no  cause  of  action  had  been  set  out,  and  that 
the  question  need  not  be  left  to  the  jury. 

With  respect  to  electric  railway  poles.  Judge  Dixon,  of  the 
Supreme  Court  of  New  Jersey,  charged  a  jury  in  a  recent  case  at 
the  Passaic  Circuit'  that  although  the  location  of  the  poles  along 
the  middle  of  a  street  had  been  designated  by  the  city  authorities 

^  Wolfe  V.   Erie  Teleg.  and  Teleph.  of  such  a  character  as  to  interfere  with 

Co..  33  Fed.  Rep.  320.  the  public  use  of  the  street. 

'  Roberts  v.    Wisconsin    Teleg.    Co.  *  Kowalski  v.  Newark  Pass.  Ry.  Co., 

(Wis.)  46  N.  W.  800.  15  X.  J.  Lh'v  Jour.  50,   February,   1892. 

See  also  People  v.  Mutual  Teleg.  Co.,  Judge  Dixon  was  one  of  the  judges 

New  York  Supreme  Court  at  Circuit,  that   decided    State,    Green    v.   Tren- 

reported  in  N.  Y.  Daily  Register  for  ton  and  State,  Halsey  v.  Newark  Pass. 

Mar.  19,  1883,  where,  in  an  action  to  Ry.   Co.  referred   to   in   Chapter     II, 

remove  telegraph  poles  from  a  street  holding    that    electric    railway   poles 

i»  which  their  erection  had  been  auth-  were  an  obstruction  of  the  street  and 

orized  bylaw,  the  only  question  left  to  were  not  justified  by  the  statute  auth- 

the  jury  was  whether  the  poles  were  orizing  the  use  of  electric  motors. 


48  ELECTRIC   WIRES  [§  4. 

under  a  statute  authorizing  the  use  of  electric  motors,  yet  this 
was  a  mere  permission  to  the  company  and  it  was  not  obliged  to 
use  poles  at  all,  and  if  it  did  so,  it  remained  subject  to  the  duty 
to  exercise  due  care  toward  the  traveling  public,  and  if  the 
pole  was  so  located  with  reference  to  a  passing  car  as  to  be 
dangerous  to  one  attempting  to  enter  the  car,  and  such  a  person 
exercising  due  care  on  his  part  was  injured,  the  company  was 
liable. 

§  4.  Cases  of  Telegraph  Lines  in  the  Street — Obstruction  to  Ordi- 
nary and  Extraordinary  Use  of  the  Street — Cases  Relating  to  Moving 
a  House. — In  Telegraph  Co.  v.  J Fz7/,*  decided  in  1852,  it  washeldthat 
legislative  authority  and  municipal  license  to  set  up  a  telegraph  line 
in  the  street,  were  no  defense  in  an  action  for  an  injury  to  a  house 
being  moved  along  the  street  and  caught  by  the  wires.  Scott 
and  Jarnagin  disapprove  of  this  decision,  and  suggest  that  the 
moving  of  a  house  was  not  an  ordinary  use  of  the  street  nor  one 
that  could  lawfully  be  made  without  special  license."  With  this, 
agrees  the  opinion  of  Judge  Depue  of  the  New  Jersey  Supreme 
court  in  charging  the  jury  in  a  case  in  the  Essex  Circuit  court, 
April  30,  1888.'  Telephone  wires  were  stretched  across  the  high- 
way in  pursuance  of  the  act  under  which  the  telephone  company 
was  incorporated,  and  with  the  consent  of  the  municipal  authori- 
ties. There  was  a  proviso  in  the  charter  that  the  wires  should 
be  so  located  as  in  no  way  to  interfere  with  the  safety  or  conven- 
ience of  persons  traveling  on  or  over  the  roads  or  highways. 
There  was  a  statute  declaring  that  the  use  of  a  public  street  "in 
any  of  the  incorporated  cities  or  towns  of  this  state,  shall  be  sub- 
ject to  such  regulations  and  restrictions  as  may  be  imposed  by 
the  corporate  authorities  of  said  cities  or  towns."  The  city  of 
Orange  had  adopted  an  ordinance  declaring  that  "  all  telegraphic 
and  telephone  wires  shall  be  placed  so  as  to  hang  not  less  than 
twenty  feet  above  the  street  crossing."  The  defendant  had  a 
special  license  to  move  a  house  along  a  street,  and  in  moving  it 
he  cut  all  the  overhanging  wires,  and  in  an  action  by  the  tele- 
phone company  it  was  insisted  on  the  part  of  the  plaintifT  that 
thirty  of  these  wires  were  more  than  twenty  feet  above  the  street. 
The  judge  charged  the  jury  that  the  use  of  a  public  highway  in 


^  II  Am.  Law  Journ.  374  (Feb.,  1S52),  Phila.  Dist.  Court. 
^  Scott  V.  Jarnagin  on  Telegraphs,  §  53  and  note. 

'  New  York  and  New  Jersey  Teleph.  Co.  v.  Dexheimer,  14  N.  J.  Law  Journ., 
295  (October,  1891). 


§  5.1  IN   STREETS   AND   HIGHWAYS.  49 

moving  a  building  was  not  within  the  right  enjoyable  by  the 
public  in  a  public  highway  for  the  purpose  of  travel,  and  that 
the  defendant's  act  was  not  justified  on  the  ground  that  he  was 
obstructed  in  the  use  of  the  highway  for  public  travel.  He  held, 
however,  that  since  the  defendant  had  a  special  license  to  move 
the  house,  the  defendant  was  justified  in  cutting  such  wires  as 
were  maintained  in  violation  of  the  city  ordinance  less  than 
twenty  feet  above  the  surface,  and  he  left  it  to  the  jury  to  decide 
whether  any  of  the  wires  that  were  cut  were  more  than  twenty 
feet  above  the  roadway,  and  to  assess  damages  for  the  cutting  of 
these  and  these  alone. 

§  5.  Telegraph  Poles  as  an  Obstruction  of  the  Street  or  Sidewalk. — 
The  obstruction  of  the  highway  by  telegraph  poles  is  justified  only 
so  far  as  it  is  authorized  by  law,  and  if  the  extent  of  the  obstruc- 
tion exceeds  the  authority  given,  the  poles  may  be  treated  as  nui- 
sances, and  redress  may  be  had  by  indictment,  by  suit  at  law  or  bill 
in  equity,  and  city  officers  may  even  exercise  the  power  of  abate- 
ment. In  a  case  in  the  Supreme  Court  of  New  York,*  it  was  held 
that  the  People  might  maintain  an  action  for  damages  and  for  an 
injunction  against  telegraph  poles  erected  along  the  sidewalk  and 
alleged  to  be  higher  and  larger  than  were  authorized,  but  the 
jury  having  found  a  verdict  for  only  six  cents'  damages,  the  court 
said  it  could  not  declare  any  particular  pole  to  be  a  nuisance,  and 
refused  to  order  any  of  them  to  be  removed.  The  statute  in  that 
case  contained  the  provisions  commonly  found  in  statutes 
authorizing  the  construction  of  telegraph  lines.  It  restricted  the 
erection  of  poles  to  such  as  were  necessary  to  the  business  of  the 
company,  and  provided  that  they  should  be  so  constructed  as  not 
to  incommode  the  public  in  the  use  of  the  street.  It  was  held 
that  the  company  was  not  limited  to  the  use  of  poles  no  larger 
or  higher  than  absolutely  necessary,  but  that  they  had  the  right 
to  use  such  as  were  reasonably  sufilicient  and  proper  if  they  were 
so  constructed  as  not  to  incommode  the  public  in  the  use  of  the 
street  or  sidewalk ;  and  the  court  said  that,  to  the  extent  to  which 
the  poles  so  constructed  were  reasonably  necessary,  they  were 
authorized  by  the  statute ;  but  that  to  the  extent  to  which  they 
went  beyond  that  in  height  or  size  or  number  they  were  illegal, 
aijd  were  the  subject  of  redress  in  the  action.' 

^  People    V.    Metropolitan     Teleph.  ^  For  a  further  discussion  of    Poles 

Co.,  31   Hun  596;    s.  c,  64  How.  Pr.  and  Wires  as  an  Obstruction,  see  Chap- 

120  (1884).    ,  ter  XV. 
E.  W.— 4 


50  rXECTRIC  WIRES  1^2. 


CHAPTER  VI. 

UNDERGROUND    WIRES. 

§  1.  Rights  of  the  Public  and  the  Companies  as  to  Putting  Wires 
"Underground. — It  has  been  the  general  custom  in  this  coun- 
try to  stretch  telegraph  and  other  electric  wires  on  poles 
overhead,  but  the  multiplication  of  wires  in  the  cities  has  be- 
come such  a  serious  incumbrance  to  the  streets,  and  has  been 
found  to  interfere  so  much  with  the  labors  of  firemen  in  put- 
ting out  fires,  that  there  has  been  a  very  general  public  de- 
mand that  the  wires  be  put  underground.  This  was  resisted  for 
a  time  by  the  companies,  but  means  have  now  been  discovered 
of  carrying  many  wires  in  cables  underground  without  affecting 
the  current  by  induction,  and  the  losses  of  overhead  wires  from 
wind  and  snow  have  been  so  great  that  the  companies  are  now 
anxious  to  put  their  wires  underground,  and  out  of  the  way  of  harm. 

Two  questions  have,  therefore,  come  up  for  decision :  first,  can 
the  public  require  the  existing  wires  to  be  taken  down  and  put 
underground  ?  and  secondly,  have  the  companies  a  right  to  open 
the  streets  and  put  their  wires  below  the  surface,  and  if  so,  upon 
what  conditions  and  under  what  authority? 

§  2.  An  Expensive  and  Difficult  Work — The  Municipality  Cannot 
Require  It. — The  taking  down  of  existing  wires  and  putting  them 
in  cables  underground  involves  very  serious  expense.  The  wires 
must  be  put  in  tubes  and  carefully  insulated,  or  must  be  im- 
bedded in  leaden  cables.  Provision  must  be  made  for  repairs  and 
for  laying  down  new  lines  and  every  precaution  must  be  taken, 
against  induction.  It  is  in  fact  a  reconstruction  of  the  line  in  a 
very  expensive  manner,  and  only  after  careful  experiment  have 
practicable  means  been  discovered,  for  putting  underground  the 
numerous  and  various  wires  required  for  the  telegraph,  the  tele- 
phone and  the  electric  light.  It  would  seem  to  follow  from  the 
decisions  already  referred  to  with  regard  to  overhead  wires,  that 
municipal  corporations  have  not  the  power  to  order  existing  lines 
lawfully  put  up  to  be  taken  down  and  put  underground.  It  is 
well  settled  that  wires  having  been  once  properly  put  up  under 
legislative  authority  and  with  municipal  consent  cannot  be  dis- 
turbed by  municipal  authority,'  and  I  know  of  no  reported   case 

^  Supra,  (j  1-4,  Chapt.  V.  See,  however,  the  remarks  of  DrQinmond,  J.,  in 
Mutual  Union  Teleg.  Co.  v.  Chicago,  16  Fed.  Rep.  309,  quoted  in  Chapt.  V,  §  3. 


§  3.j  IN   STREETS   AND    HIGHWAYS.  $1 

in  which  it  was  attempted  by  mere  municipal  authority  to  compel 
an  existing  system  of  overhead  wires  to  be  put  underground. 

There  is  no  doubt  the  legislature  may  provide  that  new  lines 
shall  only  use  the  streets  on  condition  that  they  are  put  beneath 
the  surface,  and  it  may  be  that  unless  legislative  permission, 
either  express  or  clearly  implied,  were  given  to  stretch  the  wires 
overhead,  a  municipality  might  insist,  as  a  regulation  of  the  use 
of  the  streets,  that  the  wires  should  be  put  underground. 

§  3.  Usually  Provided  for  by  Statutes— English  Statutes  Referred  to. 
— The  matter,  however,  is  so  important  and  the  relations  of  the 
parties  are  so  difificult,  that  it  is  usual  to  make  special  and  careful 
provision  by  act  of  the  legislature,  for  the  construction  and 
control  of  underground  cables  and  of  subways  for  electric  wires. 

In  England,  underground  wires  have  been  used  for  a  long  time, 
and  some  of  the  earliest  cases  on  the  use  of  the  streets  for  the 
telegraph  related  to  the  title  to  the  soil  below  the  surface,  and  to 
the  digging  up  of  public  roads  for  the  purposes  of  a  telegraph 
company.* 

The  whole  subject  is  now  carefully  regulated  by  the  statutes  45 
and  46  Vict.,  Chapter  56,  called  the  Electric  Lighting  Act  (1882), 
and  the  Electric  Telegraph  Act,  53  and  54  Vict.,  Chapter  59,  part  2 
(1890)."  Large  powers  are  given  to  the  Board  of  Trade  which  is  au- 
thorized to  license  from  time  to  time,  any  local  authority  or  any 
company  or  person,  to  supply  electricity  for  any  public  or  private 
person  within  any  area,  subject  to  certain  provisions.  It  is  assumed 
that  wires  will  be  placed  underground  as  well  as  above  ground,  and 
provision  is  made  for  obtaining  the  consent  of  the  local  authori- 
ties to  the  breaking  up  of  any  streets  repairable  by  the  local 
authorities,  and  it  is  forbidden  to  place  any  electric  line  above 
ground,  along,  over  or  across  any  street  without  the  express  con- 
sent of  the  local  authority,  and  if  any  wire  is  so  placed  without 

1  Attorney  General  v.  United  King-  and  place  in   any   public  road,  wires, 

dom    Elect.  Teleg.  Co.,   Rolls   Court,  pipes    and    tubes    necessary    or   con- 

Nov.  1861  ;  Sir  John  Romilly,  M.  R.;  venient  for  a  telegraph. 

30  Beav.  287 ;  8  Jur.  (N.  S.)  583 ;  31  L.  J.  ^  jhe  Electric  Lighting  Act,  18S2,  45 

(Ch.)  329;  10  Wkly.  Rep.  167;  Allen's  and  46  Vict.,  Chapt.  56,  entitled  "An 

-Telegraph  Cases,  173.    See  also  Regina  act  to  facilitate  and  regulate  the  sup- 

v." United  Kingdom  Elect.  Teleg.  Co.,  ply    of    electricity    for    lighting    and 

9C0X  Cr.  Cas.  174;  Redfield  on  Car-  other   purposes   in    Great  Britain  and 

tiers,  §  574.  Ireland."       Electric    Telegraph    Act, 

The  European  and  American  Elec-  1890,  53  and  54  Vict.,  Chapt.  59.     See 

trie  Printing  Telegraph  Co.,  incorpor-  also  Report  of  Board  of  Trade,  Parlia- 

ated  Aug.  7,  1851,  by  14  and  15   Vict.,  mentary    Papers,    1S89,    229.     Special 

Chapt.  13s,  was  authorized  to  lay  down  Report,  18S9,  Chapt.  5771. 


52  ELECTRIC   WIRES  [§  3. 

such  consent  it  may  be  removed  by  the  local  authorities,  and 
even  if  it  has  been  put  up  with  consent,  it  may  be  removed  by  a 
court  of  summary  jurisdiction  on  complaint  made,  and  proof  that 
it  is  dangerous  to  the  public  safety. 

The  decision  of  practical  questions  with  regard  to  the  con- 
struction of  the  line  may,  in  case  of  disagreement,  be  referred  to 
the  railway  commissioners,  and  the  case  of  Wandsworth  District 
Local  Board  V.  Postmaster-General,  found  in  the  reports  of  their 
decisions,  illustrates  the  manner  in  which  such  questions  are 
dealt  with.* 

A  local  board,  on  being  applied  to  by  the  Postmaster-General 
under  §  3  of  the  Telegraph  Act,  1878,  for  their  consent  to  the 
placing  of  telegraph  wires  and  posts  upon,  along  and  over  streets 
and  roads  in  their  district,  refused  their  consent,  except  on  condi- 
tion that  the  wires  across  or  along  streets  or  roads  should  be 
underground.  This  difference,  after  having  been  referred  to  a 
metropolitan  police  magistrate,  was,  in  accordance  with  §  4  of 
the  Telegraph  Act,  1878,  brought  before  the  railway  commis- 
sioners. The  commissioners  decided  that  overhead  wires  should 
be  allowed,  subject  to  the  following  conditions:  i.  That  all 
wires  shall  be  of  copper.  2.  That  all  poles  shall  be  of  iron.  3. 
That  no  wire  shall  be  placed  over,  along,  or  across  any  road  or 
footway  at  a  less  height  than  thirty  feet  above  such  road  or 
footway.  4.  That  where  a  wire  crosses  over  any  public  road 
or  street,  the  distance  between  the  points  of  support  at  either 
side  of  such  road  or  street  shall  not  in  any  case  exceed  100 
yards. 

The  question  of  cost  was  considered  and  the  difficulty  of 
having  wires  go  down  underground  at  every  street  crossing. 
There  was  evidence  of  Mr.  Graves,  the  engineer-in-chief  of  the 
Postoffice  Telegraphs,  that  overhead  wires  would  be  impracticable 
if  they  had  to  dip  at  every  crossing.  The  cost  of  overhouse  lines 
was  estimated  at  about  one-third  of  the  cost  of  lines  on  poles  if 
they  were  of  wood  and  one-seventh  if  they  were  of  iron,  while 
underground  work,  it  was  considered,  would  be  thirty  times 
more  expensive. 

Cunynghame  on  the  Law  of  Electric  apparatus   relating  to   electric   light- 

Lighting,London,Stevens  &  Sons,iS83,  ing.     See   also,    the    Law   relating   to 

p.    295,    contains   the  electric  lighting  Electric    Lighting,    by    G.    S.    Brown 

act  of  1882,  together  with  the  earlier  and     W.     Webb,    2nd    ed.,     London, 

statutes  that  are  incorporated  with  it,  1889. 

besides  notes   and  forms  and  a  short  ^  4  Nevill  v,  Macnamara,  301  Com- 

discussion    of   the  principles   and  the  missioner's  Decisions  (1884). 


§4-]  IN   STREETS   AND   HIGHWAYS.  53 

§  4.  General  Provisions  of  American  Statutes.  —  In  some  of  the 
American  states,  the  statutes  providing  for  the  telegraph  gave 
permission  to  lay  the  wires  underground  as  well  as  to  stretch 
them  on  poles.  The  more  recent  statutes  have  made  special 
provisions  for  the  removal  of  overhead  wires  and  putting  all  the 
wires  in  certain  large  cities  in  cables  or  subways,  under  the  control 
of  commissions  or  boards  clothed  with  special  powers,  and 
charged  with  special  duties  in  the  rnatter. 

In  Connecticut  the  selectmen  of  the  town  are  given  full 
direction  and  control  over  the  placing,  erection  and  maintenance 
of  electric  wires,  conductors,  fixtures  and  apparatus,  including 
the  relocating  or  removal  of  the  same,  and  it  is  provided  that 
every  person  who  shall  place  any  telegraph,  telephone  or  electric 
light  or  power  fixtures  or  structures  of  any  kind,  over  or  iindcr  any 
highway  or  public  ground,  without  the  consent  of  the  adjoining 
proprietors,  or  the  consent  of  the  town  commissioners,  shall  be 
fined  or  imprisoned.  Laws  of  iSS/,  Chapter  33  Gen.  Stat.  Conn. 
1887,  §§  1477,  3946. 

A  recent  statute  in  Nebraska  gives  to  the  mayor  and  common 
council  of  any  city  having  a  population  of  sixty  thousand 
inhabitants  or  upwards,  power  to  prohibit  or  regulate  the  erection 
of  telegraph,  telephone  or  electric  light  poles  in  the  public 
grounds,  streets  or  alleys  and  the  placing  of  v/ires  thereon,  and 
to  require  the  removal  from  the  public  grounds,  streets  or  alleys 
of  any  or  all  such  poles,  and  require  the  removal  and  placing 
underground  of  any  or  all  telegraph,  telephone  or  electric  wires. 
Gen.  Laws  of  1887,  p.  123,  passed  March  30,  1887. 

The  statutes  of  many  states  give  municipal  authorities  power 
to  regulate  the  putting  up  and  maintenance  of  telegraph  and 
other  wires  in  the  streets. 

In  Massachusetts  it  was  provided  in  1881  that  the  city  council 
of  any  city  and  the  selectmen  of  any  town  may  establish 
reasonable  regulations  for  the  erection  and  maintenance  of  all 
telegraph  and  telephone  lines  of  wire  within  their  respective 
cities  and  towns,  and  may  permit  the  same  to  be  laid  under  any 
public  way  or  square.  In  cities  such  regulations  shall  be  made 
by  ordinance.     Acts  and  Resolves  18S0-81,  Chapter  83,  Sec.  i. 

In  New  Jersey,  by  a  supplement  passed  March  31,  1882,  Laws 
1882,  Ch.  172,  Supp.  Rev.  1023,  it  was  declared  that  any  telegraph 
company  incorporated  under  the  general  telegraph  act,  desiring 
to  construct  its  lines  by  means  of  underground  cables  containing 
the  wires,  instead  of  poles  and  posts  sustaining  the  wires,  should 


54 


ELECTRIC   WIRES 


[§4. 


"be  subject  to  all  the  restrictions  and  provisions  concerning  the 
use  of  roads,  highways  and  streets  as  are  provided  "  in  the  general 
telegraph  act  and  its  supplements. 

In  New  York  it  is  provided  by  Chapter  397  of  the  acts  of  1879, 
as  amended  by  Chapter  483  of  the  laws  of  1884,  that  telegraph 
companies  incorporated  in  New  York  State  may  lay  lines  of 
electrical  conductors  underground  in  any  city,  village  or  town 
within  the  limits  of  the  State,  subject  to  all  the  provisions  of  law 
in  reference  to  such  companies  not  inconsistent  with  the  act, 
provided,  that  such  company  shall  first  obtain  from  the  common 
council  of  cities,  the  trustees  of  villages,  or  the  commissioners  of 
highways  or  towns  (townships),  permission  to  use  the  streets  for 
the  purposes  therein  set  forth. 

In  most  of  the  states,  however,  the  statutes  giving  authority 
to  use  the  streets  for  electric  wires  refer  to  the  use  of  posts,  poles 
and  abutments  and  give  power  to  construct  lines  "along"  or 
"  upon  and  along"  any  public  highway  or  to  erect  posts  "along" 
or  "  upon  and  along  "  the  road,  and  string  wires  therefrom.' 


^  See  for  example  Rev.  Stat,  of 
Ohio,  1S90,  §  3454;  Massachu- 
setts, 1882,  Chapt.  109;  Louisiana,  1876, 
§  3760;  Acts  of  1880,  No.  124  amending 
§  690  of  the  Rev.  Stat.;  Minnesota, 
1891,  §  2632;  Dakota,  18S7,  §  3025; 
Illinois  Rev.  Stat.,  1874,  p.  1471 ;  Laws 
of  1S83,  p.  173;  Missouri,  18S9,  § 
2730 ;  Nebraska,  Laws  of  1SS7,  p.  634 ; 
New  Hampshire,  Laws  of  1881,  p.  472 
General  Laws,  Chapt.  80;  New  Jersey, 
Laws  of  1887,  p.  119;  18S8,  p.  546; 
Supp.  Rev.,  p.  1022;  Rev.,  p.  11 74;  but 
by  the  act  of  March  31, 1882,  telegraph 
companies  are  given  permission  to 
construct  their  lines  by  means  of  un- 
derground cables.  Pennsylvania,  Gen- 
eral incorporation  act  of  1874,  §  33, 
Laws  of  18S5,  p.  164;  Vermont,  Rev. 
Laws  1880,  p.  702 ;  Virginia,  Code  of 
1SS7,  §1287;  United  States  Rev.  Stat, 
§  5263;  Alabama,  Code  of  1876,  §  1932; 
Arkansas,  Rev.  Stat.  1874,  §  57^45  Cal- 
ifornia, Act  of  Apr.  22,  1S50  ;  Colorado, 
Gen.  Laws  1877,  §  99;  Florida,  Gen. 
Laws,  Chapt.  782,  §  2;  Iowa,  Code  of 
18731  §  1324;  LaAvs  of  1882,  Chapt. 
104;  Kansas,  Laws  of  iS68,  Act  Con- 
cerning  Private    Corporations,  {(}  74, 


78;  Maryland,  Rev.  Code  1878,  §  130; 
Michigan,  Stat,  of  1871,  Chapt.  80,  §  5  ; 
Mississippi,  Code,  art.  6,  §  2430 ;  New 
York,  Laws  of  1848,  Chapt.  265,  §5  ;  but 
see  Laws  of  1853,  Chapt.  471,  §  2,  pro- 
viding for  lines  upon,  over,  or  under 
any  of  the  public  roads,  streets,  etc., 
and  Laws  of  1S79,  Chapt.  397,  and  18S1, 
Chapt.  483,  permitting  wires  to  be  laid 
underground,  and  the  acts  of  1884  and 
1SS5  in  %  5  referred  to  ;  Oregon,  Gen. 
Laws  of  1872,  Chapt.  58,  §  i  ;  Utah, 
Compiled  Laws  1SS6,  title   XI,  Chapt. 

I,  §4- 

It  has  been  held  in  Ohio,  that  under 
a  statute  authorizing  telegraph  lines  to 
be  constructed  "from  point  to  point 
along  and  upon  any  public  road,  by  the 
erection  of  the  necessary  fixtures,  in- 
cluding posts,  piers  and  abutments 
necessary  for  the  wires  in  such  manner 
as  not  to  incommode  the  public  in  the 
use  of  the  streets,"  the  company  is  not 
restricted  to  the  use  of  overhead  wires, 
and  that  the  municipality  in  the  exer- 
cise of  its  power  of  regulating  the 
streets  might  agree  with  the  companj- 
for  the  construction  of  an  underground 
system.        The     municipality     having 


§  5-]  IN   STREETS   AND    HIGHWAYS.  55 

§  5.  The  Legislation  in  New  York  Providing  for  a  Board  of  Electrical 
Control  and  a  Subway  Company. — In  New  York  the  telegraph  act 
of  1848  (ch.  265)  provided  for  the  construction  of  lines  along  and 
upon  any  of  the  public  roads  and  highways.  This  was  amended 
in  1853  (ch.  471)  so  as  to  authorize  the  construction  of  a  line  under 
as  well  as  over  a  road.  In  1884  an  act  was  passed  (ch.  534)  by 
which  it  was  provided  that  all  telegraph,  telephone  and  electric 
light  wires  and  cables  in  all  cities  of  the  state  having  a  population 
of  five  hundred  thousand  or  over,  should  thereafter  "be  placed 
under  the  surface  of  the  streets,  lanes  and  avenues"  of  the  city, 
and  that  this  should  be  done  before  the  first  day  of  November, 
1885.  It  was  further  provided  that  in  case  the  owners  of  ti:e 
wires  should  fail  to  comply  with  the  act  v/ithin  the  time  specified, 
the  local  governments  should  remove  without  delay  all  such  wires, 
cables  and  poles.  In  1885  ^^  ^ct  was  passed  (ch.  499)  which 
provided  for  the  appointment  of  a  board  of  commissioners  of 
electrical  subways,  and  it  was  made  the  duty  of  this  board  to 
cause  to  be  removed  from  the  surface  of  the  streets  and  to  be 
maintained  underground,  wherever  practicable,  all  electrical 
wires  and  cables,  and  the  subways  were  required  to  be  built 
under  the  supervision  of  the  board,  and  no  electrical  wires  were 
to  be  allowed  above  the  surface  of  the  streets  without  the 
permission  of  the  board.  This  board  made  a  contract  with  a 
company,  providing  that  the  company  should  construct  the 
necessary  subways,  subject  to  the  approval  of  the  commissioners, 
and  that  all  corporations  owning  and  operating  electrical  wires 
above  the  streets  should  have  the  right  to  place  them  in  the  subways 
upon  the  terms  and  under  the  conditions  specified.  This  contract 
was  ratified  by  an  act  of  the  legislature  in  1887  (Laws,  Chapt.  716). 

failed  to  agree  with  the  company,  it  Bradford,  Rhodes  &  Co.,'  13  Spruce 
was  held,  that  under  the  statute  in  St.,  1880  (There  is  a  copy  in  the  Li- 
Ohio,  the  probate  court  had  power  to  brary  of  the  New  York  Institute); 
direct  the  mode  in  which  the  wires  "Laws  of  the  United  States  and  the 
underground  should  be  laid  in  the  Several  States  and  Canada  Relating  to 
streets.  Edison  General  Electric  Light  Telegraphs,"  compiled  for  the  Balti- 
Co.  V.  Cincinnati,  3  Goebel  Probate  more  &  Ohio  Telegraph  Co.,  The 
Court  Reports  (Ohio)  304  (Mar.  18,  James  Kempster  Printing  Co.,  50 
1890).  Cedar  St.,  New  York,  1884;  "Railroad 
For  collections  of  the  Laws  of  the  and  Telegraph  Laws  of  Pennsylvania," 
American  States  relating  to  telegraphs  1816-1S83,  Drinker's  Ball,  1S84;  "Stat- 
and  telephones,  see  "Laws  of  the  Vari-  utes  Relating  to  the  Telephone,"  by 
ous  States  Relating  to  Telegraph  Com-  John  B.  Uhle;  28  Am.  Law  Reg- 
panies"  (privately  published,  a  few  ister,  N.  S.  75,  141,  210,  265,  333, 
copies     only     printed).    New     York,  396. 


56  ELECTRIC  WIRES  [§  7. 

§  6.  Decisions  Thereon. — This  legislation  has  been  held  to  be  a 
valid  exercise  of  the  police  power.  Injunctions  against  removing 
the  wires  have  been  denied,  and,  in  an  action  for  damages  for 
cutting  the  wires,  the  New  York  Court  of  Appeals  ordered 
judgment  to  be  entered  for  the  defendant. 

The  question  came  before  Judge  Wallace,  of  the  U.  S.  Circuit 
Court  for  the  Southern  District  of  New  York,'  and  he  held  that 
the  act  of  1884  was  a  valid  police  regulation,  even  as  to  a 
telegraph  company  engaged  in  interstate  commerce,  and  which 
had  accepted  the  provisions  of  the  act  of  Congress  of  July  24, 
1866,'  and  which  thereby  became,  as  to  government  business,  a 
government  agency,  and  also  that  the  act  of  1887  was  good  as  a 
police  regulation,  even  though  it  gave  special  privileges  to  the 
subway  company.  And  he  denied  an  injunction  against  cutting 
down  telegraph  wires  left  hanging  over  the  streets  after  notice  to 
place  them  in  the  subways,  but  as  to  wires  along  the  line  of  the 
elevated  railroad,  which  was  a  post-road  of  the  United  States,  he 
said  it  was  doubtful  whether  the  statutes  were  lawful  to  the 
extent  of  depriving  the  plaintiff  of  the  use  of  such  a  road,  and  he 
granted  an  injunction. 

The  subject  came  up  before  the  State  courts  of  New  York  in 
several  cases.  In  People  v.  Squire^  the  court  of  appeals  decided 
that  the  act  of  1884  was  not  unconstitutional,  and  was  a  proper 
exercise  of  the  power  to  regulate  streets.  The  court  said  that  in 
great  cities  there  were  many  public  uses  to  which  the  streets  were 
necessarily  put — that  they  must  be  used  for  sewers,  gas  pipes, 
steam  pipes,  telegraph  and  electric  wires,  and  that  it  was 
competent  and  proper  for  the  legislature  to  distribute  the  space 
for  the  various  uses,  so  that  all  should  best  serve  the  public 
convenience,  and,  that  in  the  exercise  of  this  power,  it  was 
reasonable  to  require  the  electric  wires  to  be  placed  in  subways 
under  the  control  of  a  neutral  board,  which  should  determine 
how  and  where  the  various  kinds  of  wires  should  be  laid. 

§  7.  Other  Decisions  Thereon. — This  decision  was  followed  in 
two   cases    in    the    Supreme    court*    and    the    question    came 

^  Western  Union  Teleg.  Co.  v.  New  *  U.  S.  Illuminating  Co.  v.  Hess,  3  N. 

York,  38  Fed.  Rep.  552  (18S9).  Y.  Supp.  777,  19  N.  Y.    St.   Rep.,  883; 

*  U.  S.  Rev.  Stat.,  §  5263.    See  Chapt.  U.    S.     Illuminating    Co.     v.     Grant, 

XII, /V«.  §  I-  7     N.     Y.     Supp.     788;     27     N.    Y. 

^  People  ex  rel.  N.  Y.  Electric  Lines  St.  Rep.  767.  See  also  East  River  Elec- 

Co.   V.  Rollin  M.  Squire,    Com'r,  107  trie  Light  Co.  v.  Grant,  25  Jones  &  S. 

N.  Y.  593  (1888);  14  N.   E.   Rep.  820,  (57  N.  Y.  Superior  Court)  553;  30  N. 

affirming  14  Daly,  154.  Y.  State  Rep.  793;  9  N.  Y.  Supp.  317. 


§  7- J  IN   STREETS  AND   IIIGirvVAVS.  57 

again  before  the  court  of  appeals  in  American  Rapid  Telegraph 
Co.  V.  Hess,  decided  February  24,  1891/  The  plaintiff,  a  tele- 
graph company  organized  under  the  telegraph  acts  of  184S 
and  1853,  had  constructed  lines  in  the  streets  of  the  city  of  New 
York  without  any  special  grant  or  authority  from  the  city.  The 
plaintiff  claimed  that  these  acts  operated  as  a  grant  to  it  of  a 
franchise  to  use  the  streets,  which  constituted  an  inviolable 
contract  under  the  protection  of  the  constitution  of  the  United 
States,  so  that  neither  the  State  nor  the  city  could  cause  the  poles 
and  wires  to  be  removed  without  making  compensation.  The  cour. 
held  that  the  statute  did  not  grant  the  plaintiff  any  interest  in 
the  streets,  but  only  conferred  upon  it  an  authority  or  license  to 
enter  upon  the  streets  and  use  them  for  a  public  use — one  of  thc^ 
purposes  for  which  the  public  streets  could  be  used — not  incon- 
sistent with  the  use  for  general  street  purposes,  and  that  these 
acts  of  the  legislature  were  general  public  legislative  acts  in  the 
exercise  of  the  police  power  of  the  State,  and,  therefore,  the\- 
were  not  beyond  the  reach  of  future  legislation.  The  court  said, 
moreover,  that  even  if  there  were  a  grant  of  some  sort  of  a 
franchise,  yet  the  state  did  not  abdicate  its  power  over  the  pubhc 
streets,  nor  in  any  way  curtail  its  police  power,  nor  absolve  itself 
from  the  duty  of  maintaining  the  streets  and  highways  of  the 
State  in  a  safe  and  proper  condition  for  public  travel,  and  they 
held  that  the  order  to  remove  the  poles  and  wires  and  put  the 
wires  in  the  subways,  after  due  notice,  was  a  proper  and  reason- 
able exercise  of  the  control  over  streets,  and  that  the  cutting 
down  the  wires,  after  failure  to  comply  with  the  notice,  was  not 
a  taking  of  property  for  public  use,  but  simply  a  removal  of  it 
after  it  had  become  a  nuisance.  The  court  said,  also,  that  the 
authority  to  remove  the  wires  could  be  found  in  the  proviso  in 
the  act  of  1848  under  which  they  were  erected,  namely,  that 
they  should  not  be  so  constructed  as  to  incommode  the  public  use 
of  the  highways.  The  legislature,  having  determined  that  they 
do  obstruct  the  public  use  of  the  streets,  has  a  right  to  direct 
them  to  be  put  beneath  the  surface.  The  telegraph  company 
insisted  that  under  the  act  of  Congress  of  July  24,  1866,  Rev. 
Stat.,  §  5263,  they  were  entitled  to  use  the  post-roads  of  the 
United  States,  and  that  under  §  3964  and  the  act  of  March  i, 
1884,  all  letter-carriers'  routes  and  all  public  roads  and  highways 

1  125  N.  Y.  641;  26  N.  E.  Rep.  919;  58  Ilun  610;  35  N.  Y.  St.  R.  606.  See 
36  N.  Y.  St.  R.  2.S2  ;  10  Ry.  &  Corp.  L.  also  Armstrong  v.  Grant,  31  N.  Y.  St. 
J.  117,  affirmin-  12  N.   Y.  Supp.  536;     Rep.248;  9N.Y.Supp.  3S8;  50  riun220. 


58  ELECTRIC   WIRES  [§  8. 

were  post-roads  ;  but  the  court  held  that  these  acts  of  Congress 
could  not  deprive  the  state  of  its  control  of  its  highways  and  its 
right  to  regulate  them  under  the  police  power,  and  that  the  laws 
of  Congress  are  perfectly  satisfied  by  permission  to  place  the  wires 
in  the  subway. 

§  8.  Relation  of  the  Electric  Wire  Companies  to  the  Subway 
Companies. — The  relation  of  the  electric  wire  companies  to  the 
subway  companies  was  considered  in  a  recent  case  in  New  York 
under  the  subway  legislation  above  referred  to.'  An  electric 
light  company,  having  notice  of  the  scale  of  charges  fixed  by  the 
subway  company  and  approved  by  the  board  of  electrical 
control,  applied  for  leave  to  put  its  wires  in  the  subway,  and  it 
was  granted.  Having  kept  the  wires  there  several  years  without 
paying  any  rent,  and  having  received  notice  to  remove  them,  the 
electric  light  company  filed  a  bill  insisting  that  the  rents  charged 
were  unreasonable,  asking  the  court  to  fix  a  fair  rent  and  in  the 
meantime  to  enjoin  the  removal  of  the  wires.  The  relief  was 
refused  by  Judge  Ingraham,  and  the  decision  was  affirmed  by  the 
general  term.  The  court  reviewed  the  statute  and  said  the 
electric  light  company  could  not  take  possession  of  the  subways, 
with  notice  of  the  rent  charged,  without  becoming  liable  to  pay 
that  rent,  and  that  if  the  rent  was  considered  unreasonable, 
application  to  reduce  it  should  be  made  to  the  board  of  electrical 
control.  The  decision  of  the  board  is  final  in  the  absence  of 
fraud,  except  upon  the  proceedings  for  mandamus  provided  for 
in  the  statute,  and  it  is  doubtful  whether  equity  can,  in  any  case, 
interfere,  but  certainly  no  injunction  can  be  granted  or  relief 
given  so  long  as  the  rent  already  accrued  remains  unpaid. 

Another  case  on  the  relation  of  the  companies  owning  the  wires 
to  the  companies  having  the  subways,^  decides  that  a  company 
whose  wires  have  been  placed  in  existing  subways  has  no  right 
by  statute  (and  the  present  case  none  by  agreement)  to  restrain 
the  transfer  of  the  subways  to  another  company,  nor  to  have  an 
injunction  against  the  board  of  electrical  control  to  prevent  it 
from  making  a  contract  for  such  a  transfer. 

'  Brush  Electric  Illuminating  Co.  v.  Consolidated  Telegraph  and  Electrical 
Subway  Co.  (New  York),  15  N.  Y.  Supp.  81  ;  s.  c.  on  appeal  to  the  gen- 
eral term,  Id  477;  60  Hun  466. 

^  Manhattan  Electric  Light  Co.  v.  Grant,  Mayor  of  New  York,  31  N.  Y. 
St.  Rep.  254;  56  Hun  642,  New   York  Supreme  Court  (1890). 


§  2.]  IN   STREETS  AND   HIGHWAYS.  59 


CHAPTER  VII. 

RIGHTS   OF  THE   OWNERS  OF    ABUTTING   LANDS  WITH   RESPECT 

TO   THE   USE   OF  THE   STREETS   FOR   ELECTRIC 

WIRES — GENERAL  VIEW. 

§  1.  The  Multiplication  of  Wires  in  the  Streets  Has  Given  Rise  to 
Controversies  with  Landowners. — With  the  multiplication  of  electric 
wires  in  the  streets  and  along  the  highways,  the  question  becomes 
important,  both  for  landowners  and  for  companies,  whether  the 
poles  and  wires  may  be  placed  in  the  streets  without  the  consent 
of  the  owner  of  the  adjoining  land,  and  without  compensation 
made.  So  long  as  electric  wires  were  only  used  for  telegraph  lines 
running  along  country  roads,  and  into  cities  and  out  again,  few 
controversies  arose,  and,  although  the  telegraph  has  been  in  use 
for  fifty  years,  there  are  few,  if  any,  decisions  to  be  found  on 
this 'question  prior  to  1883;  but,  now  that  every  street  and 
almost  every  road  has  a  line  of  many  wires,  and  the  wires  make 
almost  a  net  work  in  the  centres  of  the  cities,  the  occasions  for 
controversies  have  greatly  increased,  and  the  inconvenience  to 
the  landowners  has  become  more  serious.  Added  to  these  is 
the  new  use  of  the  wires  for  the  electric  street  railway,  and  this 
has  met  with  determined  opposition  on  the  part  of  the  owners 
and  occupiers  of  lands  along  the  street,  and  there  have  been 
many  decisions  within  the  last  two  years  on  the  question 
whether  the  owner  of  land  on  a  street  can  object  to  the  setting 
up  of  poles  and  wires  in  the  street  for  the  purpose  of  propeUing 
street  cars  by  electricity. 

§  2.  The  Purpose  for  Which  the  Wires  Are  Put  There  is  an  Important 
Element. — The  answer  to  the  question,  whether  the  landowner 
has  a  right  to  object  to  the  use  of  wires  in  the  streets,  depends 
on  the  purpose  for  which  the  wires  are  used,  and  on  the  question 
whether  that  purpose  is  a  proper  use  of  a  street  or  a  road  as  such. 
The  answer,  therefore,  may  be  different  with  respect  to  the 
various  uses  of  the  electric  wires.  It  may  be  that  the  electric 
light  wire,  used  to  supply  the  means  for  furnishing  the  streets 
as  well  as  the  houses  with  light,  is  a  proper  use  of  the  street, 
auxiliary  to  the  primary  purpose  for  which  the  street  was  laid 
out,  and  yet  that  the  telegraph  wire,  strung,  it  may  be  upon 
the  same  poles,  serves  a  purpose  which  has  no  relation  to  that  for 
which  the  street  was  dedicated  or  condemned  to  public  use,  so 


60  ELECTRIC   WIRES  [§  3. 

that  to  subject  it  to  this  use  imposes  a  new  burden,  for  which  the 
owner  of  the  soil  is  entitled  to  new  compensation.  The  telephone 
wire  must,  doubtless,  be  classed  with  the  telegraph  wire,  but  the 
poles  and  wires  for  the  electric  railway,  being  used  in  aid  of 
public  travel,  may  add  no  new  burden  to  the  land  in  the  street, 
or  none  in  addition  to  that  imposed  by  the  railway  itself.  For 
these  reasons  it  will  be  necessary  to  consider  the  various  uses  of 
the  electric  wires  separately,  after  first  inquiring  what  are  the 
rights  of  the  landov/ner  in  the  street  and  what  are  the  ordinary 
uses  to  which  a  street  may  be  put  without  affecting  his  rights  or 
requiring  his  consent. 

§  3.  Hew  Uses — Different  Views  cf  the  Proper  Uses  of  a  Street. — 
The  question  is  not  now  what  the  legislature  may  authorize  the 
streets  to  be  used  for,  but  what  are  the  uses  which  may  be  made 
without  imposing  a  new  burden  upon  the  land,  and  without 
changing  the  use  to  which  a  street  or  highway  may  be  supposed 
to  have  been  dedicated.  The  ansv/er  to  this  will,  of  course, 
depend  upon  the  breadth  of  the  view  taken  by  the  courts  of  the 
natural  and  proper  uses  of  a  street  by  the  public. 

When  land  is  taken  or  dedicated  for  the  purposes  of  a  highway, 
the  question,  what  use  may  be  made  of  it  depends  on  what  the 
purposes  of  a  highway  are.  There  is  little  difficulty  in  deciding 
what  are  the  recognized  purposes  of  the  street  or  highway  at  any 
given  time,  but  the  difficulty  arises  when,  in  the  course  of  time, 
new  modes  of  use  are  invented,  and  the  question  is  whether  they 
are  within  the  meaning  of  the  dedication  or  have  been  paid  for 
in  the  compensation  already  made.  Opinions  differ  on '  this 
according  as  the  courts  are  inclined  to  construe  strictly  or 
liberally  the  meaning  of  a  dedication  or  taking  of  lands  for  a 
street.  If  the  public  gets  only  such  uses  as  are  known  at  the 
time,  every  change  involves  a  new  burden  on  the  land  taken  ;  but 
if  the  taking  is  construed  to  be  the  acquisition  by  the  public  of 
the  use  of  the  land  for  all  the  purposes  for  which  a  street  may 
reasonably  be  required,  the  changes  in  the  mode  of  use  will  be 
regarded  as  of  little  consequence  so  long  as  the  street  is  used  for 
public  purposes  not  inconsistent  with  those  for  which  the  land 
was  taken. 

These  two  views  of  the  uses  of  the  streets  will  be  found  to 
underlie  the  decisions  on  all  branches  of  our  present  subject,  and 
the  difference  between  them  explains  the  difference  in  the 
decisions. 

It  is  useless  for  me  to  express  my  own  opinion  as  to  which  of 


§5-]  I-    STREETS   AND   HIGHWAYS.  Cl 

these  is  the  better  view,  and  it  would  be  going  over  fields  already 
reaped  to  examine  the  cases  in  detail.  The  cases  are  collected 
and  discussed  in  all  the  text-books  on  eminent  domain,  streets 
and  highways,  and  municipal  corporations. 

§  4.  Views  of  Judge  Dillon  and  Mr.  Lewis. — Judge  Dillon,  in  his 
work  on  Municipal  Corporations  (4th  ed.,  §  683),  says :  "The 
fundamental  idea  of  a  street  is  not  only  that  it  is  public,  but 
public  for  all  purposes  of  free  and  unobstructed  passage,  which 
is  its  chief  and  primary,  but  by  no  means  sole,  use."  And  again 
(§  656^),  after  saying  that  in  seme  cases  the  fee  is  in  the  owner 
of  the  adjoining  land,  and  in  some  cases  in  the  city,  he  says : 
"  In  either  case  the  abutter  is  entitled  as  of  right,  subject  to 
municipal  and  public  regulation,  to  make  any  beneficial  use  of 
the  soil  of  the  street  which  is  consistent  with  the  prior  and 
paramount  rights  of  the  public  therein  for  the  street  purposes 
proper.  The  right  of  the  public  to  use  the  streets,  not  only  for 
travel  and  passage,  but  for  sewer,  gas,  water,  and  steam  pipes, 
and  the  like  purposes,  is,  of  course  paramount  to  any  proprietary 
rights  of  the  abutter."  So,  also,  Mr.  Lewis,  in  his  recent  Treatise 
on  Eminent  Domain  (§  126),  says  :  "  In  regard  to  the  uses  which 
the  public  authorities  can  make,  or  authorize  to  be  made,  of  the 
land  acquired  for  streets,  the  general  rule  is  that  the  streets  are 
laid  out  primarily  to  accommodate  the  public  in  traveling  from 
place  to  place,  and  that  the  right  attaches  to  whatever  is  necessary 
or  proper  to  facilitate  such  travel  in  the  usual  an-d  ordinary 
modes.  But  while  the  purpose  of  streets  is  primarily  for  public 
travel,  yet  in  populous  districts  it  has  been  the  immemorial 
custom  to  employ  them  for  other  purposes  of  a  public  nature, 
which,  though  having  little  or  no  connection  with  the  uses  or 
improvement  of  the  street  as  a  highway,  are  not  inconsistent 
with  such  use."' 

§  5.  Distinction  with  Respect  to  the  Title  in  the  Public  and  in  the 
Abutting  Owner.— Another  matter  of  difference  running  through 

^  Streets  are  not  exclusively  for  power  to  authorize  the  occupation  of 
travel,  but  for  all  the  uses  to  which  it  a  public  street  for  a  permanent  mar- 
is customary  to  devote  them  (Henkel  ket.  State  v.  Laverack,  36  N.  J.  L.  . 
V.  Detroit,  49  Mich.  249) ;  so  held  by  201  ;  Wartman  v.  Phila.,  33  Pa.  St.  202- 
Cooley,  J.,  in  a  case  in  which  land  in  a  210;  McDonald  v.  Newark,  10  N,  J. 
street  was  condemned  for  market  pur-  Law  Journal,  84  and  note;  s.  c,  42  N. 
poses,  and  the  incidental  effect  was  to  J.  Eq.  136. 

block  up  the  street  with  wagons.     The  For  reference  to  cases  on  the  use  of 

weight  of  authority,  however,  is  that  street  in  cities  and  towns,  see  notes,  8 

municipal   corporations  have  not  the  L.  R.  A.  828;  9  L.  R.  A.  100. 


62  ELECTRIC   WIRES  l^  6. 

the  decisions  is  the  ownership  of  the  fee  of  the  land.  A 
distinction  is  made  between  cases  in  which  the  fee  is  owned  by 
the  abutter  and  those  in  which  it  is  owned  by  the  public,  and 
there  are  other  cases  in  which  that  distinction  is  held  to  be  of 
little  consequence. 

As  a  general  rule,  upon  the  condemnation  or  dedication  of  a 
highway,  the  fee  simple  remains  in  the  abutting  owner,  and  the 
public  acquires  only  an  easement.'  This  is  so  in  many  cases  of 
actual  conveyance  of  the  land  for  the  purposes  of  a  highway  or 
street.  On  the  other  hand,  there  are  cases  in  which  the  fee 
simple  of  the  land  in  the  highway  never  came  to  the  abutting 
owner,  but  is  held  by  the  municipal  corporation,  or,  in  a  certain 
sense,  by  the  public.^  In  either  case  the  street  is  subject  to  the 
public  use  for  the  purposes  of  a  street,  and  the  owner  of  the 
abutting  land  has  certain  special  rights  therein.  If  the  fee 
is  in  the  municipality,  it  is  held  in  trust  for  the  public  use  and 
subject  to  the  rights  of  the  abutter.  If  the  fee  is  in  the  abutter, 
he  holds  it  subject  to  the  public  use,  whatever  that  may  be,  and 
whether  the  fee  is  in  the  city  or  in  the  abutting  landowner,  he  has 
a  right  to  the  use  of  the  street  in  connection  with  his  property — 
•a  right  to  light,  and  air,  and  access — a  privilege  of  using  the 
street  as  such  in  connection  with  his  land,  and  this  right  is  a  right 
of  property  of  which  he  cannot  be  deprived  without  compensation. 

§  6.  In  Either  Case  There  are  Certain  Rights  in  the  Street  as  Such. — 
It  is  generally  agreed,  however,  that  whether  the  legal  title  is  in 
one  or  the  other,  there  are  certain  public  rights  in  the  street  as  a 
street,  and  there  are  special  rights  of  property  in  the  abutting 
owner  in  that  use.^ 

1  The   general   rule    laid    down    by  597 ;    Peck   v.   Smith,    i  Conn.  103 ;  6 

Chancellor   Kent  is  that  "a  grant  of  Am.   Dec.   216,   220;    Bissell  v.  N.  Y. 

land  bounded  by  a  highway  or   river  Central  R.  R.  Co.,  23  N.  Y.  61 ;  Elliott 

carries  the  fee  in  the  highway  or  river  on  Roads  569;  Dill.  Mun.  Corp.,  §  663. 

to  the  centre  of  it,  provided  that  the  ■'  As,  for  example,  the  Dutch  Streets 

grantor  owned  to  the  centre  and  there  in  New  York  discussed  in  some  of  the 

be  no  words  or  specific  description  to  elevated  railroad  cases  in  New  York, 

show    a   contrary    intent."     3    Kent's  Hine  v.  N.  Y.  Elev.  R.  R.  Co.,  27  N.  Y. 

Comm.   434;    Winter   v.    Peterson,    4  St.  R.  303;  Mortimer  v.  N.  Y.  Elev.  R. 

Zab.  (24  N.  J.  L.)  524;  Hoboken  Land  R.  Co.,  25  N.  Y.  St.  R.  872 ;  Abendroth 

&  Imp.  Co.  V.  Kerrigan,  31    N.    J.   L.  v.    N.    Y.    Elev.    R.   R.  Co.,  54  N.  Y. 

13;  Glasby  v.  Morris,  18  N.  J.  Eq.  72;  Super.  Ct.  417;  s.  c,  sub  nom.  Aben- 

Higbee  v.  C.  &  A.   R.  R.  Co.,  20  N.  J.  droth  v.  Manhattan  R.  R.  Co.,  122  N.Y, 

Eq-  435.  439;  Salter  v.  Jonas,  39  N.   J.  i  (1890). 

L.  469;  Boston  V.  Richardson,  13  Allen  ^  See  McQuaid  v.  Portland  &  Van- 

(Mass.)  152,  153;  Bliss  V.  Ball,  99  Mass.  couver  R.  R,  Co.,  i8  0reg.237  ;  22  Pac 


ft  H  1  IN   STREETS  AND   HIGHWAYS.  63 

The  land  taken  or  dedicated  for  use  as  streets  is  subject  to  the 
right  of  the  public  to  have  them  used  as  such,  and  also  to  the 
right  of  the  abutter  to  use  them  as  such  in  connection  with  his 
land. 

The  general  consensus  of  judicial  opinion  since  the  elevated  rail- 
road cases  have  been  thoroughly  discussed,'  seems  to  be,  that  the 
abutting  owner,  whether  he  owns  the  fee  or  not,  has  a  substantial 
right  in  the  street,  a  right  to  have  it  kept  for  use  as  a  street  for 
access  to  his  property  and  to  afford  light  and  air,  and  that  this  is 
a  right  of  property  which  cannot  be  taken  from  him  without 
compensation.* 

§  7.  Discussion  of  the  Subject  by  Mr.  Carman  F.  Randolph. — The 


Rep.  899;  I  Am.  R.  R.  &  Corp.  Rep. 
34,  with  note. 

1  Story  V.  N.  Y.  Elev.  R.  R.  Co.,  90 
N.  Y.  122;  Lahr  v.  Met.  Elev.  R. 
R.  Co.,  104  N.  Y.  268;  Pond  v.  Met. 
Elev.  R.  R.  Co.,  112  N.  Y.  186;  Porter 
V.  Met.  Elev.  R.  R.  Co.,  120  N.  Y. 
284;  Fobes  v.  Rome  &  Watertown  R. 
R.,  121  N.  Y.  505;  Hochalter  v.  Man- 
hattan R.  R.  Co.,  31  N.  Y.  St.  Rep.  112; 
Giordano  V.Manhattan  R.  R.  Co.,  31  N. 
Y.  St.  Rep.  134.  See  also  an  article  on 
the  elevated  railroad  litigation  by  Ed- 
ward A.  Hibbard,  4  Harv.  Law  Rev, 
70  (May,  1890). 

^  Judge  Dillon,  speaking  of  the  na- 
ture of  streets  and  the  rights  of  the 
owners  of  abutting  land,  says  (§  656^)  : 
"The  full  conception  of  the  true  nature 
of  a  public  street  in  a  city,  as  respects 
the  rights  of  the  public  on  the  one 
hand  and  the  rights  of  the  adjoining 
owner  on  the  other,  has  been  slowly 
evolved  from  experience.  It  has  only 
been  at  a  recent  period  of  our  legal 
history  that  these  two  distinct  rights 
have  separately  and  in  their  relations 
to  each  other,  come  to  be  understood 
and  defined  with  precision."  He  then 
proceeds  to  discuss  the  whole  subject 
with  reference  to  the  use  of  the  streets 
for  various  purposes,  including  gas 
and  water  pipes,  and  sewers,  steam 
railways  and  horse  railways,  and  de- 
votes two  paragraphs  to  the  telegraph 
and   a    note   to    the   electric    railway. 


See  Dillon,  Mun.  Corp,  4th  ed.,  Chapt. 
XVIII,  Streets,  Gas  Pipes,  §  691  ;Water 
Pipes,  §  697;  Sewers,  §  689;  Telegraph 
Poles,  §§  698,  698a,  with  notes;  Steam 
Railways,  §§  701-714,  724-727;  Horse 
Railways,  §§  705-727 ;  Elevated  Rail- 
ways, §^S  723«-723rf;  Electric  Railways, 
note  on  page  893.  The  discussion  of 
the  subject  in  the  elevated  railway 
cases  recently  decided  in  New  York  is 
especially  interesting  and  instructive, 
because  it  is  in  these  cases  that  the 
rights  of  the  landowner  in  the  use  of  the 
street  have  been  maintained  without 
respect  to  the  actual  taking  of  land. 
See,  however,  a  much  earlier  case  in 
New  Jersev,  in  which  the  landowner's 
rights  in  a  highway  were  clearly  ex- 
pressed. Barnett  v.  Johnson,  11; 
N.  J.  Eq.  481,  infra,  Chapt.  VII, 
§    10. 

A  distinction  was  made  by  Judge 
Dillon,  in  his  earlier  editions,  between 
those  cases  in  which  the  fee  was  in  the 
abutter  and  those  in  which  it  was  in 
the  public  (old  §§  556  and  557,  with 
cases),  and  he  says  in  his  last  edition 
that  he  allows  these  sections  to 
stand  (as  §§  702  and  703),  since  they 
correctly  summarize  the  law  as  it  stood 
twenty  years  ago ;  but  he  goes  on  in 
new  sections  704  and  704a  to  say 
that  "the  law  has  been  tending  towards 
an  abrogation,  in  many  respects  at 
least,  of  the  distinction  thnt  tlie  righn 
of  the  ?.bL:'.:ei  on  Ihe  one  hand  at>.d  '■!' 


64  ELECTRIC   WIRES  [§  S 

subject  is  ably  handled  by  Mr.  Carman  F.  Randolph,  of  the  New 
Jersey  bar,  in  an  article  on  Eminent  Domain  Over  Streets,  in  12 
New  Jersey  Law  Journal  133,  a  chapter,  I  believe,  in  a  book  he 
is  writing  on  eminent  domain  in  general.  His  conclusion  is  that 
there  is  no  real  difference  between  cases  in  which  the  fee  of  the 
soil  to  the  middle  of  the  street  is  in  the  owner  of  the  abutting 
land,  and  cases  in  which  the  fee  of  the  land  in  the  street  is  in 
the  public.  The  distinction  is  taken  in  many  cases,  and  the  deci- 
sions are  made  to  turn  upon  it,  but  Mr.  Randolph,  after  examin- 
ing the  elevated  railroad  cases  in  New  York  and  other  late  cases, 
in  which  the  subject  is  thoroughly  considered,  suggests  that  the 
fee  in  the  owner  is  subject  to  an  indefinite  right  of  present 
possession  by  the  public,  and  cannot  have  substantial  value  as 
property,  and  that  if  the  fee  is  held  by  the  State,  it  is  held  in 
trust  for  the  people  for  the  purposes  of  a  street,  and  subject  to 
the  right  of  the  owner  to  the  easements  of  light,  and  air,  and 
access,  so  that  in  either  case  the  only  valuable  property  of  the 
owner  is  his  easement  or  right  to  use  the  street  in  connection  with 
his  property,  and  that  for  damage  to  this  alone  need  compensa- 
tion be  made  upon  the  construction  of  any  public  work  for  the 
purpose  of  transportation.  Mr.  Randolph  was  speaking  of  the 
taking  of  streets  for  railroad  purposes,  and  speaks  therefore  of 
public  works  of  transportation,  but  the  same  principle  is  appli- 
cable to  public  works  of  any  kind, 

§  8.  Same  Subject :  The  Elevated  Railroad  Cases. — The  cases  he 
referred  to  were  those  of  the  elevated  railroads  in  the  city  of 
New  York,  which,  although  they  were  intended  for  public  travel, 
affected  very  seriously  the  ordinary  uses  of  the  streets  by  the 
owners  of  adjoining  lands,  and  interfered  with  the  access  and 
light  and  air.'     It  was  held  in  these  cases  that  whether  the  fee 

the  public  on  the  other  are  essentiallj  Telephone  Lines,  §  131.     Judge  Elliott 

different,  whether  the  bare  fee  of  the  discusses    the    nature    of     streets    in 

street   or  highway   is   in   one   or   the  Chapter   I,  and  the  rights  of  abutters 

other."  with   respect  to  uses  of  various  kinds 

The  same  subject  is  discussed  by  Mr.  in  Chapter  XXVI,  and  with  respect  to 

Lewis  in  Chapter  V  :  "What  Consti-  street  railways  in  Chapter  XXIX.  The 

tutes   a   Taking — Streets   and    High-  telegraph  and  telephone  are  considered 

ways."     See  especially  as  to  Railroads  on   pages  531  and  532,  and  some  cases 

in  Streets,  §§  110-123;   Elevated   Rail-  are  referred  to. 

roads,  §  123;    Horse   Railroads,  §§  124,  ^  Story  v.  N.  Y.  Elev.  R.  R.  Co.,  90 

125;    Other    Uses     Generally,   §    126;  N.  Y.  122  ;  Lahrv.  Met.  Elev.  R.  R.  Co., 

Sewers    and     Drains,    §    127;     Water  104  N.  Y.  268 ;  Pond  v.  Met.  Elev.  R.  R. 

Pipes,  §  12S;   Gas-pipes,  ^  129;   Steam,  Co.,  H2  N.  Y.  1S6;  Porter  v.Met.  Elev. 

Electricity,  etc.,  §  130;  Telegraph  and  R.  R.  Co.,  120  N,  Y.  284;  Hochalter 


§  9-]  IN   STREETS   AND   HIGHWAYS.  65 

was  in  the  owner  or  in  the  city,  owners  were  entitled  to  compere 
sation  for  the  injury  to  their  lands  as  abutting  lands.  The  com. 
pensation  was  paid,  not  because  any  land  was  taken,  but  because 
the  right  of  the  owner  as  abutter  was  affected  ;  the  damages  were 
given  because  of  the  effect  of  the  work  on  the  adjacent  land. 
The  new  use,  Mr.  Randolph  says,  is  not  a  taking  because  it  is 
inconsistent  with  the  easement  of  passage  for  which  the  land  is 
taken,  but  because  it  affects  the  adjacent  property.  "  In  the 
thoroughfare  as  such,  the  adjacent  owner  has  no  more  interest 
than  any  other  individual.  That  use  is  common,  not  particular, 
property ;  the  only  limitation  upon  it  is  that  it  may  not  be  so 
dealt  with  as  to  trench  upon  a  private  right,  such  as  the  right  of 
access  to  the  adjoining  property." 

§  9.  Same  Subject :  Other  Cases. — The  same  idea  is  expressed  by 
Chief  Justice  Arnold  in  a  recent  decision  of  the  Supreme  Court 
of  Mississippi.'  He  says:  "A  distinction  is  made  by  some  of 
the  authorities  in  cases  where  the  fee  in  the  soil  of  the  street  is 
in  the  pubhc — the  State,  county,  or  city — and  where  it  remains 
in  the  abutting  owner;  and  in  the  first  case  the  right  of  the 
abutting  owner  to  compensation  is  denied,  and  in  the  latter  it  is 
recognized  and  allowed.  We  perceive  no  well-founded  difference 
in  principle  in  such  distinction.  If  the  fee  is  in  the  public,  it  is 
held  in  trust,  expressly  or  impliedly,  that  the  land  shall  be  used 
as  a  street,  and  it  cannot  be  applied  to  any  other  purpose  without 
a  breach  of  trust.  It  is  only  where  the  fee  is  in  the  public,  free 
from  any  trust  or  duty,  that  it  may  be  disposed  of  for  any  pur- 
pose that  the  public  may  deem  proper.  Whether  the  abutting 
owner  has  simply  an  easement  in  the  street,  while  the  fee  is  in 
the  public  or  in  some  other  owner,  or  whether  he  has  both  the 
fee  and  an  easement,  he  is  equally  entitled  to  require  that  nothing 
shall  be  done  in  derogation  of  his  rights.' 

There  is  a  thoughtful  discussion  of  the  subject  in  a  late  case 

V.   Manhattan  R.  R.  Co.,  31  N.  Y.  St.  main,  §§  114,  115;  Barney  v.  Keokuk, 

Rep.  112;  Giordano  V.Manhattan  R.  R.  94  U.  S.  324;  St.  Paul,  etc.,  R.  R.  Co. 

Co.,  31  N.  Y.  St.  R.  R.  134;  Abendroth  v.   Schurmeir,   7    Wall.   272;    Story  v. 

V.    Met.  Elev.    R.    R.    Co.,   54   N.  Y.  New   York   Kiev.   R.   R.  Co.,  90  N.  Y. 

Super.  Ct.  417;  s.  c,  sub   nom.  Aben-  123;  43  Am.    Rep.    146;    i    Rorer   on 

droth  V.  Manhattan  R.  R.  Co.,  122  N.  Railroads,  524;   Haynes  v.  Thomas,  7 

Y.  I.  Ind.    38;     Anderson   v.    Turbeville,   6 

1  Theobald v.Louisville,etc.,R.R. Co.,  Cold.  150;  South  Carolina  R.  R.  Co. 

66Miss.  279  ;i4  Am.  St.  Rep.  564(1889).  v.    Steiner,  44   Ga.    546;    Crawford  v. 

'  He  cites  i    Hare  on  Constitutional  Village     of     Delaware,    7    Ohio     St. 

Law,  370,  37:;;  Lewis  on  Eminent  Do-  460. 
E.  W.-s 


66  ELECTRIC   WIRES  [§  lO. 

in  Oregoa'  where  the  court  said  the  question  who  owns  the  fee 
is  of  very  little  consequence.  The  fee  cannot  be  in  any  real 
sense  in  the  public,  no  matter  how  a  street  is  laid  out  (whether 
by  deed  or  statute  or  dedication) ;  the  public  have  the  right  of 
passage  for  all  public  purposes  and  nothing  more,  and  the  abutter 
has  'rights  of  light  and  air  and  access.  So,  again,  Mr.  Justice 
Depue,  in  the  court  of  errors  of  New  Jersey,  said:  "With 
respect  to  lands  over  which  streets  have  been  laid,  the  ownership 
for  all  substantial  purposes,  is  in  the  public ;  nothing  remains  in 
the  original  proprietor  but  the  naked  fee,  which,  on  the  assertion 
of  the  public  right,  is  divested  of  all  beneficial  interest,'"'  and 
this  was  quoted  and  applied  by  Vice-Chancellor  Van  Fleet  of 
New  Jersey,  in  a  recent  case  in  which  it  was  held  that  the  posts 
and  wires  for  supplying  electricity  for  the  propulsion  of  street 
cars  did  not  affect  any  substantial  right  of  property  of  the 
abutting  owner.' 

§  10.  Same  Subject :  The  Rights  Really  Affected  are  the  Rights  of 
Adjacency  Without  Respect  to  Ownership  of  the  Land  in  the  Street. — 
The  question  rests  not  upon  what  this  or  that  judge  thinks  of  the 
telegraph  or  electric  light  or  electric  railway  with  reference  to  the 
uses  of  the  street,  but  rather  upon  a  clear  comprehension  of  what 
the  uses  of  a  street  really  are,  and  upon  the  establishment  of  a 
principle  underlying  the  relations  of  the  landowner  and  the  public, 
which  will  apply  to  all  the  varying  uses  to  which,  with  the  prog- 
ress of  invention  and  the  necessities  of  modern  society,  the 
streets  are  commonly  put,  and  which  will  on  the  one  side  protect 
the  individual  in  the  enjoyment  of  all  his  rights,  and  on  the 
other  give  the  public  such  uses  of  the  streets  as  public  conven- 
ience requires.  It  is  only  recently  that  the  courts  and  the 
writers  on  this  subject  have  begun  to  apply  to  this  question  the 
principle  that  the  landowner  has  a  right  in  the  use  of  the  street 
in  connection  with  his  land  which  is  injured  by  a  perversion  of 
the  uses  of  the  street,  and  which  may  be  affected  by  a  new  use, 
even  though  such  use  is  authorized  by  law  and  is  a  proper  use  of 
the  street  for  the  purposes  for  which  it  was  laid  out.  The  right 
of  adjacency — the  advantage  of  having  your  land  upon  the  high- 
way with  right  of  access  and  light  and  air,  this  is  what  the  peo- 

1  McQuaid  v.  Portland  &  Vancouver  R.  R.  Co.,  i8  Oreg.  237;  22  Pac.  Rep. 
899;  1  Am.  R.  R.  &  Corp.  Rep.  34. 

'  Hoboken  Land  &  Improvement  Co.  v.  Hoboken,  36  N.  J.  L.  540,  551. 

»  Halsey  v.  Rapid  Transit  St.  R.  R.  Co.,  47  N.  J.  Eq.  380;  20  Atl.  Rep.  859 
(Dec.  6,  1890). 


§11.]  IN   STREETS   AND    HIGHWAYS.  6/ 

pie  understand  and  value.  Who  owns  the  fee  they  do  not  know 
nor  care.  The  courts  have  been  puzzling  themselves  over  the 
question  whether  there  has  been  any  legal  injury  to  this  intan- 
gible fee.  The  real  question  of  any  practical  concern  to  the  land- 
owner or  the  public  is  whether  the  owner  is  deprived  of  any 
thing  or  any  advantage  which  he  enjoyed  in  connection  with  his 

land. 

The  decision  of  the  elevated  railroad  cases  in  New  York  has 
emphasized  the  importance  of  these  rights  of  adjacency,  and 
shown  that  the  landowner  can  be  protected  in  his  enjoyment  of 
the  highway,  whether  his  land  is  taken  or  not,  and  that  he  has 
rights  in  the  street,  which,  if  they  are  taken,  must  be  paid  for, 
whether  the  fee  of  the  street  is  in  him  or  in  the  public.  This 
principle  was  clearly  expressed  many  years  ago  in  New  Jersey, 
where  the  court  of  errors  maintained  the  right  of  the  owner  of 
land  adjoining  a  canal  to  the  enjoyment  of  light  and  air  from  over 
the  canal,  enjoining  the  canal  company  from  putting  up  a  build- 
ing over  the  canal  alongside  of  the  plaintiff's  windows.'  The 
right  of  light  and  air  from  a  public  highway,  the  court  said,  was 
established  by  universal  and  most  ancient  custom.  Men  do  not 
first  build  cities  and  then  lay  out  roads  through  them,  but  they 
first  lay  out  roads  and  then  cities  spring  up  along  their  lines. 
.  .  .  When  people  build  upon  the  public  highway,  do  they 
inquire  or  care  who  owns  the  fee  of  the  road-bed?  Do  they  act 
or  rely  upon  any  other  consideration  except  that  it  is  a  public 
highway,  and  that  they  are  adjacent  owners? 

If  this  right  of  adjacency  is  fully  protected — if  a  landowner 
cannot  be  deprived  without  compensation  of  any  privilege  he  en- 
joys as  landowner  in  connection  with  the  street,  it  will  not  matter 
much  whether  or  not  he  has  a  right  of  action  for  a  trespass  upon 
land  which  he  has  dedicated  to  public  use  and  which  the  public 
has  the  right  to  use  for  an  indefinite  time. 

I  think  a  definite  answer  to  the  question  with  respect  to  all  the 
various  electric  wires  will  only  be  obtained  when  this  principle  has 
been  fully  recognized  and  has  been  applied  by  the  courts  not  only 
to  the  elevated  railroad  but  also  to  the  street  railroad,  the  tele- 
graph and  the  telephone. 

§  11.  This  Principle,  if  Recognized,  "Will  Simplify  the  Discussion,  but 
the  Distinction  Must  be  Considered  in  Reading  the  Cases. — If  this  be 
the  true  theory  of  the  relation  of  the  landowner  to  new  uses  of 
the  street,  it  will  greatly  simplify  the  discussion,  and  will  do  away 

1  Barnett  v.  Johnson,  15  N.  J.  Eq.  4S1,  4SS  (1856). 


68  ELECTRIC   WIRES  [§  II. 

with  distinctions  which  have  not  been  easy  to  justify  between 
different  modes  of  use.  Take  out  of  the  discussion  the  trespass 
to  the  technical  fee  in  the  land,  and  let  the  question  be  whether 
the  landowner  has  suffered  any  injury  with  respect  to  the  pleas- 
ant and  convenient  use  of  his  land  in  connection  with  a  street, 
and  then  the  question  will  be  the  same  whether  the  new  use  be 
a  steam  railroad  or  a  horse  railroad,  a  telegraph  or  an  electric 
lighting  system.  The  fact  is,  however,  that  the  subject  has  been 
generally  discussed  with  reference  to  the  ownership  of  the  fee, 
and  the  question  whether  the  new  use  is  consistent  with  the  old 
uses  or  is  such  as  should  have  been  anticipated  when  the  street  was 
laid  out.  A  distinction  has  been  taken  between  cases  in  which 
the  fee  was  in  the  owner  of  the  abutting  land  and  those  in  which 
it  was  in  the  public,  and  owners  have  been  held  to  be  entitled  to 
compensation  for  one  use  and  not  for  another,  on  the  ground 
that  one  was  a  use  not  anticipated  and  the  other  was  a  use  that 
might  have  been  expected  to  be  made  of  a  street,  although  the 
real  damage  may  have  been  the  same  in  both  cases.  The  de- 
cision has  depended  sometimes  on  the  breadth  of  view  taken  by 
the  judges  as  to  what  are  the  proper  uses  of  a  street,  and  some 
uses  have  been  excluded  and  som.e  admitted  when  the  difference 
may  well  be  thought  to  be  one  of  degree  rather  than  of  kind.  I 
need  not,  however,  attempt  to  discuss  the  general  principles  of  a 
question  which  belongs  to  the  broader  subject  of  eminent  do- 
main. It  has  been  discussed  by  Mr.  Lewis,  Mr.  Mills  and  Judge 
Dillon  with  reference  to  all  the  various  uses  of  the  streets.  I 
will  only  examine  the  cases  relating  to  the  use  of  the  streets  for 
poles  and  wires  intended  for  the  various  applications  of  electricity. 


§  2.]  IN  STREETS  ANQ   HIGHWAYS.  69 


CHAPTER  VIII. 

RIGHTS   OF  ABUTTING   OWNERS— TELEGRAPH   AND    TELEPHONE. 

§  1.  Telegraph  and  Telephone  Wires  Have  Become  Obnoxious  to 
Adjoining  Landowners. — There  is  no  doubt  that  telegraph  poles, 
with  the  great  number  of  wires  now  stretched  upon  them,  are 
becoming  seriously  annoying  to  owners  of  lands  along  the  streets 
and  highways.  In  cities  the  numerous  lines  of  wire  for  the  tele- 
graph, the  telephone  and  the  electric  light,  make  a  net  work  of 
iron  and  copper  which  sometimes  almost  darkens  the  windows, 
and  is  always  a  dangerous  obstruction  to  the  prompt  action  of 
the  firemen  in  case  of  fire.  Tall  poles  carrying,  as  they  sometimes 
do,  as  many  as  one  hundred  and  fifty  wires,  are  dangerous  in 
case  of  a  storm  of  snow  and  wind.  The  numerous  posts  for  the 
various  kinds  of  wires  obstruct  the  view  and  affect  the  appear- 
ance  of  the  streets  of  the  town.  In  the  country  the  inconven- 
iences are  not  so  great,  and  it  used  to  be  considered  a  matter  of 
small  consequence  whether  a  line  of  telegraph  ran  along  the 
highway  in  front  of  one's  land  or  not  ;  but  now  that  the  lines 
have  multiplied,  and  country  roads  are  lined  with  villas  and 
green  lawns,  a  line  of  posts  and  wires  sometimes  spoils  the 
appearance  of  a  pretty  place,  and  causes  serious  annoyance,  even 
though  it  might  be  hard  to  prove  any  pecuniary  damage.  For 
these  reasons,  it  is  important  for  landowners  to  know  whether 
they  have  a  right  to  forbid  the  planting  of  the  poles  in  front  of 
their  lands  until  legal  proceedings  have  been  taken  and  compen- 
sation has  been  made. 

It  has  become,  therefore,  a  practical  question  of  some  impor- 
tance whether  telegraph  and  telephone  lines  may  be  set  up  along 
country  roads  or  city  streets  without  the  consent  of  the  owners 
of  the  adjacent  land  ;  and,  if  not,  whether  the  compensation  must 
be  made  for  the  mere  occupation  of  the  land  in  the  street  or 
only  for  damage  to  the  right  of  access  and  other  rights  included 
in  the  privilege  of  adjacency  to  the  highway. 

§  2.  Question  of  Rights  cf  LandoTraers  Suggested,  but  Not  An- 
swered by  Scott  &  Jarnagin  in  1868. — When  Scott  &  Jarnagin 
wrote  their  treatise  on  telegraphs  in  1868,  they  said:  "Most  of  the 
telegraph  lines  of  the  United  States,  Canada  and  Great  Britain, 
and  probably  also  in  other  countries,  are  along  the  lines  of  public 


70  ELECTRIC   WIRES  [§  3. 

highways,  either  under  or  upon  them,  or  along  the  line  of  railroads, 
and  but  few  cases  are  likely  to  come  before  the  courts  between 
private  persons  and  telegraph  companies  in  relation  to  the  appro- 
priation of  lands,  either  by  purchase  or  condemnation,  for  the 
purpose  of  constructing  telegraph  lines.'"  They  suggest  the 
question  we  are  now  considering,  whether  the  street  may  be  used 
without  additional  compensation  to  the  owner  of  the  fee,  and  ex- 
press their  opinion  upon  it,  but  find  no  judicial  decision  on  either 
side  with  respect  to  lines  of  telegraph  wire.  They  refer  to  the 
conflicting  decisions  with  respect  to  railroads,  and  although  they 
thought  the  more  generally  received  opinion  in  the  American 
States  was  that  the  railroad  was  only  an  improved  highway  and 
that  the  owner  of  the  fee  had  no  claim  to  additional  compensa- 
tion, they  go  on  to  say:  "How  this  may  be  upon  principle,  and 
whether  or  not  the  railway  track  should  be  considered  an  addi- 
tional servitude  upon  the  land,  there  can  be  little  doubt  that  in 
the  case  of  telegraph  companies,  the  erection  of  posts  upon  the 
highway  or  locating  pipes  under  the  highway  for  wires,  under  leg- 
islative authority,  without  provision  for  compensation  to  the 
owner,  would  give  such  owner  the  technical  right  to  damages, 
although  such  damages  would  be  only  nominal."  And  while  they 
thought  he  would  have  his  action  at  law,  they  said  there  was  lit- 
tle doubt  that  a  court  of  equity  would  refuse  to  entertain  a  bill 
for  injunction,  and  that  the  matter  might  be  considered  a  ques- 
tion of  little  or  no  importance. 

§  3.  The  Question  Has  Now  Become  Important. — Since  this  was 
written,  the  use  of  electric  wires  in  the  streets  has  greatly  in- 
creased, and  the  question  has  become  one  of  practical  importance, 
not  only  with  respect  to  the  telegraph  and  telephone,  but  also 
because  of  the  effect  of  the  answer  upon  the  other  uses  of  the 
electric  wires  in  the  streets.  It  is  important,  therefore,  to  refer  to 
the  cases  in  which  the  question  has  been  decided  by  the  courts 
since  Scott  &  Jarnagin  proposed  it  as  a  mere  matter  of  specula- 
tive interest. 

They  assumed  that  it  had  been  determined  that  railroads  v/ere 
not  an  additional  burden  upon  the  highway,  and  yet  concluded 
that  telegraphs  did  impose  a  new  servitude.  It  has  since  been 
decided  by  the  weight  of  authority  that  steam  railroads,  as  ordi- 
narily operated  v.ith  locomotives  and  trains  of  cars,  are  not 
merely  an  improved  highway,  but  are  inconsistent  with  the  ordi- 
nary use  of  the  street,  and  impose  an  additional  burden  upon 
'  Scott  &  Jarnagin  on  Telegraphs,  §  23  (1S68). 


§  5-]  IN   STREETS   AND    HIGHWAYS.  7I 

the  soil ;'  and  yet  the  courts  agreeing  in  this  are  divided  on  the 
question  whether  the  telegraph  and  the  telephone  may  be  placed 
in  the  streets  and  highways  without  compensation. 

§  4.  Question  Stated. — It  is  admitted  that  the  legislature  has 
power  to  subject  the  highway  to  this  use.  The  question  is 
whether  it  can  be  done  without  compensation  to  the  owner  of 
the  abutting  land.  In  many  of  the  states  the  statutes  authoriz- 
ing the  construction  of  the  lines,  expressly  require  the  consent 
of  a  landowner  to  be  obtained  before  telegraph  or  telephone 
poles  are  planted  in  front  of  his  land  on  his  side  of  the  street, 
and  in  these  cases  there  is,  of  course,  no  doubt,  that  compensation 
must  be  paid  unless  the  consent  be  obtained;  and,  indeed,  if  no 
provision  is  made  for  condemnation,  the  consent  is  necessary  to 
the  right  to  plant  the  poles.  But,  supposing  no  condition  to 
be  imposed  by  the  legislature,  and  no  provision  to  be  made  for 
condemnation,  the  question  now  is  whether  the  use  of  the  street 
or  highway  for  the  telegraph  or  telephone  lines  imposes  a  new 
burden  upon  the  land  or  affects  in  any  way  the  rights  of  the 
owners  of  the  land  over  or  in  front  of  which  the  street  is  laid. 

§  5.  Argument  on  One  Side. — On  the  one  side  it  is  argued  that  the 
easement  of  highway  is,  in  the  last  analysis,  intercommunication 
or  the  right  to  the  use  of  the  highway  by  the  public  generally  for 
the  purpose  of  intercommunication.  Its  purpose  has  always  been 
not  merely  travel  and  transportation,  but  also  the  transmission  of 
intelligence.  It  has  been  used  by  the  post  horse  and  the  mail 
wagon,  as  well  as  the  coach  and  the  cart.  When  new  kinds  of 
road  and  new  modes  of  travel  and  transportation  become  neces- 
sary, the  public  have  a  right  to  use  them,  and  they  impose  no  new 
burden  on  the  soil  unless  they  are  inconsistent  with  the  old  use; 
and  so,v/hen  new  means  of  communication  are  found,  the  public  may 
use  the  highway  for  these,  and  if  the  old  use  remains  unimpaired 
the  owner  of  the  soil  has  no  cause  to  complain.  He  has  given 
his  land  for  a  public  highway.  It  is  used  for  a  public  purpose  for 
which  a  highway  was  designed,  and  he  has  still  the  old  use  unim- 
paired.*    The  telegraph,  therefore,  being  a  legitimate   use  of  the 

•See   Morris   &    Essex  R.  R.  Co.  v.  Rep.  S59;  Van  Home  v.  Newark  Pass. 

Newark,  2   Stockt.    (10  N.  J.  Eq.)352;  R.  R.  Co.,  21  Atl.  Rep.  1034,  to  appear 

Starr  v.  Camde  n  &  Atlantic  R.  R.  Co.,  in  48  N.  J.  Eq. ;  and  the  cases  and  text- 

4  Zab.   (24  N.  J.  L.)  592  ;  Hinchman   v.  books  referred  to  infra,  Chapt.  X,  §  8 

Paterson    H.   R.   R.  Co.,    17  N.  J.  Eq.  and  notes. 

75;  Citizens' Coach  Co.  V.  Camden,  33  ^^j^e  argument  on  this   side  of   the 

N.  J.  Eq.  267;  Halsey  v.  Rapid  Transit  question  is  very  well  presented  in  the 

St.  Ry.  Co.,  47  :n.  J.  Eq.  380;  21  Atl.  brief  of  Robert  Stiles  ot   the  Virginia 


72  ELECTRIC   WIRES  [§  /. 

highway  for  the  purposes  for  which  it  was  dedicated,  it  is  only 
a  new  method  of  using  an  old  easement  and  imposes  no  new 
burden  on  the  soil. 

§  6.  Argument  on  the  Other  Side. — On  the  other  hand,  it  is  con- 
tended that  the  streets  and  highways  were  intended  primarily  for 
travel  and  transportation,  and  that,  although  they  were  intended 
also  for  the  transmission  of  intelligence,  and  the  telegraph  is  used 
for  that  purpose,  yet  the  mode  of  use  is  so  wholly  different  from 
the  old  one,  and  requires  such  permanent  occupation  of  the  soil, 
that  it  cannot  be  supposed  that  the  landowner,  in  dedicating  his 
land  for  purposesof  a  highway,  or  the  pi^blic  in  condemning  it,  con- 
templated that  it  should  be  used  by  a  telegraph  company  for  the 
erection  of  posts  and  the  stringing  of  wires.  The  landowner 
has  given  only  the  right  of  user  for  a  public  highway,  and  re- 
tains the  fee  in  the  soil;  or  if  the  public  have  the  fee,  they  hold 
it  in  trust  for  the  highway  use ;  the  landowner,  therefore,  has 
a  right  to  complain  of  the  permanent  occupation  of  the  soil  and 
the  setting  up  of  obstructions  in  the  street,  and  if  he  has  not, 
there  is  nothing  to  prevent  the  posts  being  put  up  so  as  to  form 
a  barrier  between  his  land  and  the  street,  and  the  wires  from 
being  so  numerous  as  to  be  annoying  and  dangerous. 

§  7.  Distinction  in  the  Cases  as  to  the  Title  to  the  Land  in  the 
Street. — It  is  to  be  noticed  in  reading  the  decisions,  that  some  of 
them  make  a  distinction  between  cases  in  which  the  fee  is  in  the 
landowner  and  those  in  which  the  fee  is  in  the  pubHc, 
and  allow  compensation  for  the  use  of  the  soil  in  the  one 
case  and  not  in  the  other.  This  is  not  a  distinction  which  works 
practical  justice,  because  it  will  be  found  that  when  land  is 
taken  or  condemned  for  a  street  it  is  not  regarded  as  of  any  prac- 
tical importance  whether  the  public  take  the  fee  in  trust  for  the 
uses  of   the  street  and  subject  to  the  special  easements  of  the 

bar,  in  Western  Union  Teleg.  Co.  v.  joyed  ?     Applying   these  tests   to  the 

Williams,  Sup.  Ct.  of  Appeals  of  Vir-  new    uses  as   they  come   up,  the   turn- 

ginia,  decision  reported  in  86  Va.    896,  pike,  the  plank  road,  the  street  railway 

II  S.  E.  Rep.  106  (1S90).     He  suggests  and  the  steam  railway,  he  finds  they  all 

as  true  tests  of  a    legitimate   use  of   a  pass  it  except  the  last,  and  then  apply - 

highway     the      following:        Is     the  ing  it  to  the  telegraph  he  insists  that  it 

alleged  new  use,  so  far  as  its  purpose,  passes  them  both,  answering  one  of  the 

object  and  eflfectare  concerned,  within  most  important  purposes  for  which  the 

the  scope  of  the  easement  of  a  highway  ?  highway  was  intended,  taking  the  place 

and,  2d,  Would    the  new  use  be  incon-  of  the  messenger  and  the  mail   wagon 

sistent  with  the  further  exercise  of  this  and  not  interfering  with  the  free  use  of 

easement  in    the  manner   in  which  it  the  highway  for  travel  or  transporta- 

was   originally,  or  is  at  the   time,  en-  tion  or  access  to  the  adjoining  land. 


§  8.]  IN   STREETS   AND   HIGHWAYS.  73 

adjacent  owner,  or  whether  the  possession  and  beneficial  use  are 
given  to  the  public,  while  the  owner  keeps  such  property  in  the 
land  as  remains  for  him.'  The  distinction  was  ignored  in  the 
elevated  railroad  cases,  and  a  just  decision  was  reached  by  recog- 
nizing the  special  interest  of  the  adjacent  owner  in  the  street,  and 
giving  him  damages  for  being  deprived  of  the  advantages  his  land 
was  entitled  to,  as  adjacent  land,  whether  he  or  the  public  owned 
what  is  called  the  fee.  However  this  may  be,  it  is  well,  in  reading 
the  cases,  to  observe  whether  the  fee  is  in  the  individual  or  in  the 
public,  and  whether  or  not  this  fact  is  made  the  basis  of  the 
decision. 

§  8.  Cases  in  Missouri  in  1882  in  Favor  of  the  Electric  Wires. — It  is 
only  recently,  as  I  have  said,  that  any  cases  have  been  reported  on 
the  question  whether  the  owner  of  abutting  land  is  entitled  to 
damages  for  the  construction  of  a  telegraph  line  in  the  street  in 
front  of  his  premises.  There  are  two  cases  in  1882  decided  by 
the  St.  Louis  court  of  appeals.  In  the  first,*  it  was  held  that, 
in  the  absence  of  special  injury,  the  landowner  is  not  entitled  to 
an  injunction  against  planting  a  telegraph  pole  in  front  of  his 
premises.  The  mere  presence  of  the  pole,  the  court  said,  would 
not  be  a  sufficient  ground  of  complaint.  There  must  be  such  in- 
convenience that  the  pole  would  be  a  nuisance  if  it  were  not  au- 
thorized for  a  public  use.  In  the  second  case,'  an  injunction  was 
granted  against  the  erection  of  a  broken  and  unsightly  pole 
which  might  be  dangerous,  but  was  refused  as  to  a  proper  pole, 
although  it  was  to  be  erected  within  four  feet  and  three  inches  of 
the  plaintiff's  dwelling-house,  and  the  plaintiff  was  the  owner  of  the 
fee  in  the  land  to  the  middle  of  the  street.  The  court  said  there 
was  no  evidence  of  any  injury  to  the  fee,  but  that  the  only  claim 
was  an  injury  to  the  easement  in  the  street  by  the  obstruction  of 
travel,  and  that  there  was  in  fact  no  real  obstruction  of  travel  or 
access. 

The  meaning  of  these  decisions  is,  that  the  landowner  is  not 
entitled  to  protection  against  a  trespass  upon  the  technical  fee, 
the  beneficial  use  of  which  is  in  the  public,  but  only  against  an 
injury  to  his  easement  of  access  and  travel,  or  when  his  enjoy- 
ment of  the  privileges  of  an  adjacent  owner  are  in  some  way 

'Mr.    Randolph's   Article   on   Emi-  Rep.  34.  See  Chapt.  VII,  ^§  S,  9,  jw/ra. 

nent  Domain  over  Streets,  12  N.  J.  Law  '^  Gay   v.  Mutual   Union  Teleg.  Co., 

Journal,   133;  McQuaid  v.  Portland  Sc  12  Mo.  App.  4S5. 

Vancouver  R.  R.  Co.,  18  Oregon  237;  ''  Forsythe  v.  B.  &  O.  Teleg.  Co.,  I3 

22  Pac.  Rep.  899;   I  Am.  R.  R.  Corp.  Mo.  App.  494. 


74  ELECTRIC   WIRES  [§  lO. 

affected.  It  must  be  observed,  however,  in  comparing  decisions 
in  Missouri  with  those  in  many  other  states,  that  the  courts  of 
Missouri  had  already  decided  that  even  a  steam  railroad,  duly  au- 
thorized, is  not  a  perversion  of  the  purpose  of  a  street,  nor  a  new 
burden  upon  the  fee,  but  that  the  landowner  is  only  entitled  to 
compensation  for  the  damage  done  to  the  adjacent  land  by  rea- 
son of  the  construction  and  operation  of  the  railroad.'  How  this 
principle  is  applied  to  the  telegraph  will  appear  in  the  later  pases 
in  Missouri,  to  be  quoted  presently.'' 

§  9.  Decision  in  Massachusetts  on  the  Same  Side  in  1883. — The 
next  reported  decision  on  this  side  of  the  question  was  rendered 
a  year  later  by  the  supreme  judicial  court  of  Massachusetts. 
The  case  was  Pierce  v.  Drewf  the  whole  subject  was  thoroughly 
discussed,  and  the  judges  were  divided  in  opinion.  The  majority 
maintained  that  an  additional  servitude  was  not  imposed  by  the 
appropriation  of  part  of  a  public  highway  under  the  statute  (Pub. 
Stat.  ch.  IC9)  for  the  use  of  a  line  of  electric  telegrapli.  The 
whole  beneficial  use  of  the  highvv'ay,  they  said,  had  been  given  to 
the  public,  and  the  use  by  a  telegraph  line  is  analogous  to  that  by 
gas  and  water  pipes.  A  change  of  public  use  requires  no  new 
compensation.  When  the  land  was  taken,  it  w^as  taken  not  merely 
for  the  privilege  of  traveling  over  it  by  the  then  known  vehicles, 
or  of  using  it  by  the  then  known  methods  of  either  conveying 
goods  or  transmitting  intelligence.  The  telegraph  is  a  new 
method  of  transmitting  intelligence — a  new  method  of  using  an 
old  easement.  It  is  recognized  as  such  by  the  act  of  Congress 
which  declares  that  all  post-roads  may  be  used  for  telegraph 
lines.^  No  compensation,  therefore,  need  be  made  to  the  land- 
owner for  the  mere  erection  of  a  line  of  telegraph  along  the  road. 
C.  Allen  and  Wm.  Allen,  JJ.,  dissented,  insisting  that  the  mul- 
tiplication of  telegraph  wires  might  be  a  serious  damage  to  the 
landowner,  and  that,  as  it  could  not  be  anticipated  and  paid  for 
by  the  city  or  county,  on  laying  out  a  road,  it  ought  to  be  paid  for 
by  the  telegraph  company  when  the  line  was  actually  to  be  con- 
structed. 

§  10.  Later   Case   in   Missouri. — This   decision  was  followed    in 

'  Porter  v.  R.  R.  Co.,  33  Mo.  128;  Lackland  v.  R.  R.  Co.,  34  Mo.  259,  and 
other  cases   cited   infra,  Chapt.   X,  §  S,  note. 

'Julia  Building  Assn.  v.  Bell  Teleph.  Co.,  88  Mo.  25S  (1885);  City  of  St. 
Louis  V.  Bell  Teleph.  Co.,  96  Mo.  623  (18S5). 

^  136  Mass.  75  (18S3). 

^  Act  of  July  24,  1SS6,  U.  S.  Rev.  Stat.,  §  5263. 


§  II.]  IN   STREETS   AND   HIGHWAYS.  75 

1885  by  the  case  of  J7ilia  Building  Association  v.  Bell  Telephone 
Co.,  decided  by  the  Supreme  Court  of  Missouri.' 

The  question  came  up  on  an  application  by  the  owner  of  a 
store  in  St.  Louis  for  an  injunction  restraining  a  telephone  com- 
pany from  cutting  a  hole  in  the  pavement  in  front  of  his  building 
and  setting  up  a  pole  there.  It  was  alleged  that  the  company 
was  about  to  cut  a  hole  in  the  stone  wall  supporting  a  vault 
under  the  pavement.  The  plaintiff  owned  the  fee  to  the  middle 
of  the  street.  The  telephone  company  had  authority  from  the 
legislature  and  the  city  council  to  construct  the  line.  The  court 
held  that  the  street  might  be  applied  to  all  purposes  consistent 
with  the  proper  uses  of  a  street,  and  that  it  is  only  when  it  is 
subjected  to  a  new  use,  subversive  of  the  old  one,  that  the 
abutting  landowner  has  cause  to  com.plain,  and  they  decided 
that  the  telephone  was  a  proper  use  for  a  city  street,  even  if, 
as  had  been  held  in  Indiana,  it  were  not  so  for  a  country  high- 
way.'* Henry,  C.  J.,  and  Sherwood,  J.,  dissented,  on  the  ground 
that  it  was  not  a  use  contemplated  in  the  laying  out  of  the 
street,  and  had  nothing  to  do  v/ith  the  ordinary  uses  of  a  street. 
"  The  telephone  does  not  need  the  street  for  its  construction, 
and  there  is  no  connection  between  public  travel  and  talking 
through  a  telephone."  The  chief  justice  suggested  that  if  plant- 
ing telephone  poles  is  a  legitimate  use  of  the  street,  the  tele- 
phone company  had  no  occasion  to  get  permission  from  the 
city  to  set  them,  because  every  individual,  including  corporations, 
may  make  any  legitimate  use  of  the  street  without  permission  of 
the  city,  which  can  only  regulate  such  use,  but  does  not  confer 
the  right  which  it  derived  from  dedication.^  This  argument  is 
a  strong  one,  but  it  applies  Vv-'ith  equal  force  to  street  railways 
and  other  special  or  privileged  modes  of  exercising  the  public 
use,  and  the  answer  to  it  is,  no  doubt,  that  the  power  really  comes 
from  the  legislature,  which,  having  supreme  power  over  the  high- 
ways, has  the  power  to  authorize  special  uses  for  certain  parts 
of  the  road  within  the  scope  of  this  general  purpose  of  the 
highway. 

§  11.  Other  Decisions  on  the  Same  Side. — These  decisions  were 
followed  by  the  Supreme  Court  of  Louisiana,  in  Irwin  v.  Great 
Southern  TelepJi.  Co.,''  Manning,  J,,  dissenting.  In  this  case  the 
fee  was  in  the  public,  and  the  court  said  that  the  legislature,  hav- 

^88  Mo.  258.  'See   Lewis'  Em.  Dom.,  §§  111,124, 

"  Board    of    Trade    Teleg.     Co.     v.     supra,  Chapt.  II,  ^  IJ 
Barnett,  107  111.  507;  27  Am.  Rep.  453.        *  37  La.  Ann.  63  (1SS5;. 


76  ELECTRIC   WIRES  [§  12. 

ing  authorized  the  use  of  the  street  by  the  telephone,  the  land- 
owner had  no  cause  to  complain  unless  his  right  of  ingress  and 
egress  was  affected.  In  two  cases  arising  in  the  city  of  Wash- 
ington the  question  related  solely  to  the  rights  of  the  plaintiff  as 
adjacent  owner,  the  title  to  the  streets  being  in  the  National  Gov- 
ernment. The  situation,  of  course,  was  the  same  as  if  the  title 
were  in  the  city  or  the  public  generally  under  a  State  govern- 
ment. A  perversion  of  the  streets  from  their  proper  use  would 
affect  the  plaintiff's  rights  whether  he  owned  the  fee  or  not. 
These  cases  were  Hcwett  v.  Western  Unio7i  Teleg.  Co.,''  and  McCor- 
7ttick  v.  District  of  Columbia?  Bills  were  filed  for  an  injunction 
against  putting  up  a  telegraph  line  along  a  street  in  Washington 
in  front  of  the  plaintiff's  place  of  business.  The  company  had 
acquired  a  right  under  the  act  of  Congress  of  July  24,  1866,  to 
use  the  streets,  and  the  Commissioners  of  the  District  of  Colum- 
bia had  given  their  consent,  so  that  the  only  question  was  whether 
private  rights  were  affected.  It  was  insisted  that  the  poles  would 
seriously  obstruct  the  ordinary  use  of  the  premises  and  of  the 
street  as  a  highway  contiguous  thereto,  and  that  the  wires  were  a 
source  of  danger,  and  that  the  noise  of  the  wind  whistling  through 
them  would  be  a  nuisance.  The  poles  were  one  hundred  and 
fifty  feet  apart,  and  were  not  near  the  plaintiff's  doorways.  The 
court  said  that  an  injunction  would  only  be  granted  in  case  of 
serious  and  irreparable  injury,  and  that  no  such  injury  was 
threatened  in  this  case.  It  could  not  be  seriously  contended  that 
the  access  or  light  and  air  were  interfered  with,  and  the  danger 
and  nuisance  arising  from  the  wires  were  very  slight.  The  bills 
for  injunction  were  dismissed. 

§  12.  Wires  Without  Poles  Not  a  Burden  on  the  Land. — So  also 
in  New  Jersey,  in  a  case  ^  in  which  no  pole  was  set  up  in 
front  of  the  complainant's  land  (for  which  the  statute  requires 
his  consent),  and  the  complaint  was  that  the  wires  were 
about  to  be  stretched  along  the  street  on  his  side  of  the  way, 
the  court  of  chancery  refused  to  grant  a  preliminary  injunc- 
tion, saying  that  it  was  doubtful  whether  the  complainant  had 
a  right  to  complain  of  the  use  of  a  street  for  stretching  tele- 
graph or  telephone  wires,  and  that  there  was  no  such  urgent 
necessity  as  to  call  for  a  preliminary  injunction.  The  chancellor 
(Runyon)    referred    to    the    decision     in    Pierce   v.  Drew,  that 

^  Mackey  (D.  C.)  424;  2  Centr.  Rep.  694  (1S86). 

"^  4  Mackey  (D.  C.)  396;  54  Am.  Rep.  284  (1886). 

3  Roake  v.  Am.  Teleph.  &  Teleg.  Co.,  41  N.  J.  Eq.  35  (1886). 


I  13.]  IN   STREETS   AND    HIGHWAYS.  ^7 

the  telegraph  did  not  impose  a  new  burden  on  the  highway, 
and  alluding  to  the  statute  requiring  the  consent  of  the  landowner 
to  the  planting  of  poles  in  the  street  in  front  of  his  land, 
he  said:  "The  legislature  of  this  state  appears  to  have  consid- 
ered that  the  use  of  the  street,  so  far  as  the  wires  are  con- 
cerned, was  not  a  violation  of  the  rights  of  the  owner  of  the  soil 
in  the  street;  for,  while  it  recognizes  such  rights  as  to  the  erec- 
tion of  poles,  it  does  not  do  so  as  to  the  wires."  It  is  obvious 
that  the  stretching  of  wires  over  the  plaintiff's  land  in  the  street 
is  no  less  a  violation  of  his  right  of  property  in  the  land  than  the 
planting  of  poles ;  for,  if  he  owns  the  land  he  owns  iisque  ad  c(Z- 
lum}  If,  therefore,  the  use  of  the  street  for  the  telegraph  is  a 
perversion  of  its  proper  use  and  imposes  a  new  servitude,  the  land- 
owner has  as  much  right  to  complain  of  the  wires  as  of  the  poles. 
The  distinction  made,  therefore,  by  the  chancellor  between  the 
wires  and  the  poles  is  significant,  because  the  cases  in  New  Jer- 
sey with  reference  to  poles  which  are  governed  by  a  statute  are 
frequently  cited  as  authority  for  the  general  proposition  that  the 
telegraph  imposes  a  new  burden  on  the  highway." 

§  13.  Arguments  on  the  Other  Side — Decisions  in  New  York  and 
New  Jersey. — On  the  other  side  of  the  question  we  find  a  longer 
list  of  cases,  although  in  some  of  these,  as  in  some  of  the  others, 
there  is  disagreement  among  the  judges,  and  in  some,  the  deci- 
sions rest  upon  the  fact  that  the  statute  authorizing  the  use  of 
the  streets  has  made  express  provision  for  obtaining  the  consent 
of  the  landowner  or  making  compensation. 

*  Electric  Tel.  Co.  v.  Overseers  of  note.  Chancellor  Runyon,  however, 
the  Poor  of  Salford,  24  L.  J.  (N.  S.),  in  a  later  case,  referring  to  poles  put 
Magistrates'  Cases  146.  Per  Pollock,  up  without  the  consent  required  by 
C.  B. :  "Whether  the  line  goes  under-  statute,  said  the  company  without  pre- 
ground  or  in  the  air  the  proprietors  of  tense  of  legislative  authority  and  with- 
it  exclusively  occupy  a  certain  portion  out  the  consent  of  the  plaintilT,  had 
of  space,  of  which  they  have  complete  put  up  poles  upon  his  land  (in  the 
control."  street)    and   had    thus    subjected    the 

The  title  of  the  local  authorities  to  land  '7o  an  additional  servitude  ba- 
the land  in  the  streets  does  not  neces-  sides  that  for  which  it  was  con- 
sarily  extend  upwards  indefinitely,  but  demned."  Broome  v.  N.  Y.  &  N.  J. 
a  title  given  by  statute  has  been  held  Telephone  Co.,  42  N.  J.  Eq.  141  (1886). 
to  include  only  the  surface,  and  so  The  difference,  no  doubt,  is  that  in  this 
much  above  and  below  it  as  may  be  case  the  use  was  not  authorized  but  in 
required  for  the  uses  of  a  street,  violation  of  the  legislative  condition : 
Wandsworth  District  Board  of  Works  whereas  in  the  former  case  there  was 
v.  United  Telephone  Co.,  13  Q^  B.  D.  no  condition  violated,  and  the  com- 
904  (1884).  pany  was  authorized  to  use  the  public 

*  See  Lewis'  Em.   Dom.,  §  131    and  streets.     Vice-Chancellor    Van    Fleet, 


78  ELECTRIC   WIRES  [§   1 3. 

In  Dusenbury  v.  Mutual  Telegraph  Co.,  in  the  New  York 
superior  court,'  the  plaintiff  owned  land  on  a  village  street,  and 
his  title  extended  to  the  middle  of  the  street.  The  telegraph 
act'  gave  a  right  of  entry  to  telegraph  companies,  subject  to  the 
right  of  the  owner  or  owners  to  full  compensation.  The  court 
construed  this  as  a  condition  precedent,  applicable  to  streets  and 
highways,  as  well  as  to  other  lands,  and  held  that  ejectment 
would  lie  against  a  company  which  had  set  up  poles  in  the  street 
on  the  plaintiff's  land.  The  court  said  :  "  It  is  undisputed  that 
the  plaintiff  owns  the  land  thus  occupied,  subject  only  to  the  high- 
way  easement  which,  as  between  him  and  the  defendant,  leaves 
his  ownership  complete  and  exclusive." 

In  Metropolitan  TelepJione  and  Telegraph  Co.  v.  TJie  Colwell 
Lead  Co.^  it  was  held  by  Judge  Ingraham  at  a  special  term,  that 
the  legislature  has  no  power,  so  far  as  abutting  owners  are  con- 
cerned, to  authorize  the  use  of  the  streets  of  New  York  for  the 
erection  of  telegraph  and  telephone  poles  and  wires.  The  fee  of 
the  street  in  that  case  was  vested  in  the  city,  but  the  judge  said 
that  the  city  held  it  in  trust  for  use  as  a  public  street,  and  that 
the  use  of  a  street  for  a  telephone  line  did  not  come  within  the 
purpose  of  the  trust,  and  that  the  power  of  the  legislature  to 
regulate  streets  did  not  extend  to  permitting  such  a  use  without 
the  consent  of  property  owners. 

Under  a  statute  in  New  Jersey,  authorizing  the  erection  of 
poles  subject  to  making  compensation,  it  was  held*  that  a  manda- 
tory injunction  should  issue  to  compel  a  company  to  take  down 
poles  put  up  without  the  consent  of  the  landowner,  and  without 
having  taken  proceedings  to  condemn.  The  chancellor  spoke  of 
the  setting  up  of  poles  on  the  land  in  the  highway,  as  subjecting 
the  land  to  an  additional  servitude,  and  an  invasion  of  the  plain- 
tiff's proprietary  rights,  for  which  the  defendants  had  obtained  no 
authority  under  the  terms  of  the  statute.  The  chancellor  was 
speaking,  however,  of  the  planting  of  poles  without  the  consent 
required  by  statute,  and  does  not  modify  the  opinion  he  had  re- 
cently  expressed    in  regard  to   wires.*     In  a  later  case  in   New 

however,  in  Halsey  v.  Rapid  Transit         ^  11  Abbott  New  Cases  440  (1882). 

Ry.  Co.,  47  N.  J.  Eq.  380;  20  Atl.  Rep..        '  Laws  of  New   York,  1853,  ch.47x; 

859(1890),  in  distinguishing  between  Amending  Act  of  1848,  ch.  265. 

the  telegraph  and  the  electric  railway,        '67  How.  Pr.  365;  50  N.  Y.  Super. 

assumes  it  to    have  been   decided  by  Ct.  488  (1884). 

the  general  current  of  judicial  author-        *  Broome  v.  N.  Y.  &  N.  J.  Teleph. 

ity  that  the  telegraph  is  not  within  the  Co.,  42  N.  J.  Eq.  141   (1886). 

public  easement  of  a  street  or  highway.        *  Roake   v.   Am.   Teleg.   &  Teleph. 


§  14-]  IN   STREETS   AND    HIGHWAYS.  79 

Jersey,'  Vice-Chancellor  Van  Fleet,  deciding  that  an  electric 
street  railway  was  not  a  new  use  of  the  street,  distinguished  be- 
tween this  and  the  telegraph,  saying  that  the  use  the  new  method 
makes  of  the  street  is  the  real  test,  and  that  this  principle  ex- 
hibits in  a  clear  light  the  reason  why  it  has  been  held  that  placing 
telegraph  and  telephone  poles  in  the  street  imposes  an  addi- 
tional servitude  on  the  land.  He  said:  "They  are  not  placed  in  the 
street  to  aid  the  public  in  exercising  their  right  of  free  passage, 
nor  to  facilitate  the  use  of  the  street  as  a  public  way,  but  to  aid 
in  the  transmission  of  intelligence.  Although  our  public  high- 
ways have  always  been  used  for  carrying  the  mails,  and  for  the 
promotion  of  other  like  means  of  communication,  yet  the  use  of 
them  for  a  like  purpose,  by  means  of  the  telegraph  and  telephone, 
differs  so  essentially  in  every  material  respect  from  their  general 
and  ordinary  uses,  that  the  general  current  of  judicial  authority 
has  declared  that  it  was  not  within  the  public  easement.  Massa- 
chusetts has,  however,  by  a  divided  court,  held  otherwise.  Pierce 
V.  Drew,  136  Mass.  75." 

§  14.  Cases  in  Some  Western  Courts. — In  Willis  v.  Erie  Telegraph 
and  Telephone  Co.,'  the  judgment  of  the  court  below  was,  that 
the  placing  of  telegraph  and  telephone  poles  in  a  city  street,  under 
license  of  the  city  authorities,  was  an  infringement  of  the  rights 
of  the  owner  of  the  fee. 

On  appeal,  the  question  was  thus  stated  by  the  court :  "  Is  such 
a  case  within  the  purposes  for  which  a  city  street  must  be 
deemed  to  have  been  established,  so  that  the  individual  proprie- 
tor is  not  entitled  to  further  compensation,  or  is  there  a  new 
appropriation  of  the  land  not  embraced  in  the  original  dedication 
or  condemnation  of  the  street  for  public  purposes?"  On  this 
question  the  court  was  equally  divided,  and  no  opinion  was 
written  on  either  side,  but  the  judgment  below  was  affirmed. 

Board  of  Trade  Teleg.  Co.  v.  Barnett,"  was  an  action  of  trespass 
by  the  owner  of  land  abutting  upon  a  highway  (not  a  city  street), 
against  a  telegraph  company  for  putting  up  poles  just   outside  of 

Co.,    41     N.    J.    Eq.    35,    referred    to  '  Halsey    v.    Rapid    Transit    St.    Ry 

in    (j    12,   supra.     See  also   Broome  v.  Co.,  47   N.   J.   Eq.  380;    20  Atl.    Rep 

Telephone  Co.,  49  N.  J.  L.  624;  Winter  859-864.     See   also    Taggart   v.    New 

V.  Telephone  Co.,  51   N.  J.  L.  83,  as  to  port  St.  Ry.  Co.,  16  R.  I.  668;  19  Atl 

the  necessity  for  stating  the  size  and  Rep.  326;   2  Am.  Corp.  &  R.  R.  Rep 

location  of   the   poles  in  a  petition  to  44,  with  note;  43  Am.  &  Eng.  R.  Cas 

condemn   and   assess  damages  so  as  to  208;  7  L.  R.  A.  20^. 

show   the  extent  of  the  burden  to  be  ^37  Minn.  347  (1887). 

imposed.  ^  107  111.  507;  27  Am.  Rep.  453  (1883). 


80  ELECTRIC   WIRES  [§  !$• 

the  hedge,  and  cutting  some  of  the  trees  of  the  hedge.  By  way 
of  justification,  the  defendant  pleaded  that  the  acts  complained  of 
were  necessarily  done  in  building  a  telegraph  line  authorized  by 
law,  and  having  the  consent  of  the  county  board.  It  was  held 
that  the  action  would  lie,  and  that  the  statutory  permission  was 
subject  to  the  constitutional  inhibition,  that  private  property 
shall  not  be  taken  nor  damaged  for  public  use  without  just  com- 
pensation. The  court  said  that  a  telegraph  line  was  not  a  part 
of  the  public  easement  in  the  highway,  but  a  new  and  additional 
burden  thereon,, a  use  to  which  it  was  not  contemplated  that 
the  highway  should  be  subjected,  and  for  which  the  owner  is 
entitled  to  additional  compensation.  The  case  was  likened  to 
that  of  a  railway  which  had  been  held  in  Illinois  to  be  an  addi- 
tional burden  and  a  new  kind  of  use  of  the  highway.'  This  case 
was  distinguished  in  Julia  Building  Associatio7i  v.  Bell  Telephone 
Co.,''  on  the  ground  that  it  related  to  a  country  road  and  not  a 
city  street. 

In  Smith  v.  Central  District  Printing  and  Telegraph  Co.,  the 
circuit  court  of  Trumbull  County,  Ohio,  followed  Board  of  Trade 
V.  Barnett,  and  held  that  a  telephone  or  telegraph  line  upon  a  high- 
way  (it  was  a  country  road  and  not  a  city  street)  was  a  new  bur- 
den upon  the  land  not  contemplated  when  the  road  was  laid  out, 
and  that  the  owner  was  entitled  to  compensation.  Poles  put 
up  pending  the  litigation  and  after  objection  were  ordered  to 
be  removed. 

§  15.  Recent  Cases  in  Virginia,  Maryland  and  Mississippi. — In  a 
recent  case  in  the  supreme  court  of  appeals  of  Virginia*  a  very 
strong  argument  was  made  by  counsel,^  in  favor  of  the  proposi- 
tion that  a  telegraph  as  a  means  of  communication  is  a  proper 
use  of  a  public  highway,  for  which  no  compensation  need  be 
made ;  but  the  court  decided  that,  by  the  condemnation  of  the 
land  for  a  road,  the  public  had  acquired  only  a  right  of  way,  and 
that  the  extent  of  the  condemnation  was  the  right  to  pass  along 
over  the  road,  and  that  for  all  other  purposes  the  title  remained 
in  the  individual:  to  dig  the  soil  was  to  dig  his  soil,  and  to  put  up 
a  post  was  to  take  possession  of  his  land,  and  the  right  to  do 

1  B.  &  W.   Railroad  Co.   v.  Hartley,  Hams,  86  Va.  S96;   11  S.  E.  Rep.  106;  8 

67  111.  439.  L.  R.  A.  429 ;  42  Alb.  L.  J.  4 ;  30  Am.  & 

'88    Mo.   258,    quoted    in  §    8,    su-  Eng.  Corp.  Gas.  564;   2  Am.    R.   R.  & 

fra.  Corp.  Rep.  Ann.  25S  (1890). 

»  2  Ohio  Circuit  Ct.  259  (1886).  ^  Mr.  Robert    Stiles  of   the  Virginia 

*  Western  Union  Teleg.  Co.  v.  Wil-  bar. 


I  17.]  IN   STREETS   AND   HIGHWAYS.  81 

these  things  must  be  paid  for  before  it  can  be  acquired.  It  was 
held  that  the  court  below  was  right  in  charging  the  jury  that  the 
owners  of  the  soil  had  the  exclusive  right  to  the  land  in  the  road, 
subject  to  the  right  of  public  passage,  and  that  the  fact  that  the 
road  was  a  public  highway  did  not  authorize  the  erection  of  tele- 
graph posts  without  the  owner's  consent. 

A  still  later  decision,  made  in  view  of  all  the  previous  decisions 
on  both  sides,  was  that  of  the  court  of  appeals  of  Maryland  on 
March  24,  1891.'  In  an  action  of  trespass  for  placing  a  telephone 
pole  in  the  street  on  the  plaintiff's  land,  a  plea  that  the  defend- 
ants were  a  telephone  company,  authorized  to  construct  a  line 
along  post  roads,  and  having  the  permission  of  the  city  govern- 
ment, was  held,  on  demurrer,  to  be  bad,  because  the  statutes  could 
not  give  the  right  to  use  the  plaintiff's  land  without  compensation. 
The  subject  of  the  rights  of  abutting  owners  was  discussed  and 
many  cases  were  cited. 

§  16.  Other  Cases.— Again,  on  May  4,  1891,  it  was  held  by  the 
Supreme  Court  of  Mississippi,"  that  a  city  cannot  grant  a  company 
the  right  to  erect  a  telegraph  line  along  a  public  street,  without 
making  compensation  to  the  owners  of  abutting  land,  because  the 
telegraph  is  a  new  use  and  an  additional  burden,  and  it  makes  no 
difference  whether  the  fee  of  the  street  is  in  the  abutting  owner 
or  in  the  public' 

§  17.  Views  of  Text-Book  Writers. — The  large  majority  of  the  de- 
cisions thus  far  seem  to  be  in  favor  of  the  view  that  the  telegraph 
is  an  additional  burden  on  the  highway,  and  this  seems  to  be  ac- 
cepted by  the  text-writers  who  refer  to  the  subject  as  the  better 
opinion.*  Mr.  Lewis,  in  his  work  on  Eminent  Domain  (§  131), 
says:  "The  lines  of  a  telegraph  or  telephone  company  are  on  the 
same  footing  as  the  steam  railroad.     They  form  no  part  of  the 

*  Chesapeake  &  Potomac  Telephone  v.  Pearce,  71  Md.  535;  18  Atl.  Rep. 
Co.  V.  Mackenzie,  21  Atl.  Rep.  690;  910;  7  L.  R.  A.  200,  a  telegraph  line 
74  Md.  "was  held  to  be  an  additional  burden  on 

*  Stowers  v.  Postal  Telegraph  Cable  land  already  condemned  for  the  right 
Co.,  Sup.  Ct.  Miss.,  44  Alb.  L.  J.  133;  of  way  of  a  railroad.  For  other  cases 
9S0.  Rep.  356;   12  L.  R.  A.  864.  on    the    subject,   see    Chapter    XIII, 

In  Theobald  v.  Railway  Co.,  66  infra. 
Miss.  279;  6S0.  Rep.  230;  4  L.  R.  A.  *  Lewis  Em.  Dom.,  §  131;  Dillon 
735  (1889),  it  was  said,  in  passing  Mun.  Corp.,  4th  ed.,  §  698,  698fl;  Elliott 
{obiter),  that  the  telegraph  is  an  addi-  on  Roads  and  Streets,  pp.  533-536. 
tional  burden,  and  that  it  makes  no  Mr.  Angell,  in  his  work  on  High- 
difference  whether  the  fee  is  in  the  ways,  refers  to  the  cases,  and  expresses 
landowner  or  the  public.  no  definite  opinion.     3d  ed.,  §  91c. 

2  In  American  Teleph.  &  Teleg.  Co.  See,  also,  Mr.  Lewis'  Notes  to  West- 
E.  V^^.— 6 


82  ELECTRIC   WIRES  [§    1 8. 

equipment  of  a  public  highway,  and  are  entirely  foreign  to  its  use." 
He  makes  a  distinction,  however,  between  cases  in  which  the  fee  is 
in  the  public  and  those  in  which  it  is  in  the  abutting  owner.  He 
says  that  in  the  latter  case,  the  owner  is  entitled  to  compensation 
for  the  additional  burden  placed  upon  his  land,  and  in  the  former 
case,  he  may  recover  for  interference  with  his  rights,  but  that  if 
there  is  no  interference  with  the  ingress  and  egress,  or  the  light 
and  air,  there  is  no  taking,  because  there  is  no  damage.  Judge 
Dillon,  on  the  other  hand  (§  698^),  says  he  "considers  the  true 
doctrine  to  be  that  the  rights  of  the  abutter,  as  between  him  and 
the  public,  are  substantially  the  same  whether  the  fee  is  in  him, 
subject  to  the  public  use,  or  is  in  the  city  in  trust  for  street  uses 
proper;"  and  his  conclusion  is  that,  "on  the  whole,  the  safer  and 
perhaps  sounder  view  is  that  such  a  use  of  the  street  or  highway, 
attended  as  it  may  be,  especially  in  cities,  with  serious  damage 
and  inconvenience  to  the  abutting  owner,  is  not  a  street  or  high- 
way use  proper,  and  hence  entitles  such  owner  to  compensation 
for  such  use,  or  for  any  actual  injury  to  his  property  caused  by 
poles  and  lines  of  wires  placed  in  front  thereof." 

§  18.  Conclusions  with  Respect  to  the  Right  to  Use  the  Highways  for 
the  Telegraph  and  Telephone. — It  may  be  suggested,  however,  that  it 
is  not  yet  safe  to  predict  which  of  the  two  views  will  finally  prevail. 
It  is  certain  that  no  distinction  can  permanently  endure  which 
makes  a  practical  difTerence  between  two  public  streets  with  re- 
spect to  the  technical  title  to  the  soil.  When  men  lay  out  land 
for  streets,  they  dedicate  it  for  street  uses,  retaining  all  the  privi- 
leges of  adjacency;  when  they  convey  land  to  the  city  for  a  street, 
or  when  the  city  condemns  land  for  a  street,  the  land  is  taken  for 
the  purposes  of  a  street,  and  for  these  only,  and  the  individual 
retains  the  same  rights  of  adjacency  as  before. 

The  decision  of  the  question  depends  not  on  the  nature  of  the 
title  to  the  street,  but  on  the  question  whether  the  rights  and 
privileges  of  the  abutting  owner  in  the  use  and  maintenance  of 
the  street  as  such  are  affected,  and  on  the  further  question  what 
is  the  scope  of  the  uses  and  purposes  of  a  public  street.  It  is 
only  recently  that  the  courts  have  begun  to  look  at  the  subject 
from  this  point  of  view.  The  older  reports  are  full  of  cases  which 
take  the  destinction  with  respect  to  the  title  of  the  land,  in  decid- 
ing on  the  rights  of  railways  in  the  streets,  and  in  the  later  cases 

ern  Union  Teleg.  Co.  v.  Williams,  2  Ibid.  73-S6.  Also  note  to  Taggart  v. 
Am.  R.  R.  Corp.  Rep.  258,  268,  and  Newport  St.  R.  R.  Co.,  2  Am.  Corp.  & 
Am.  Teleg.  &  Teleph.  Co.  v.  Smith,   i     R.  R.  Cas.56. 


§  Ip.]  IN   STREETS   AND    HIGHWAYS.  83 

the  distinction  has  been  gradually  ignored.  At  length  the 
question  was  brought  squarely  up  in  the  New  York  elevated  rail- 
road cases/  and  the  court  of  appeals  of  New  York  held  that  it 
made  no  difference  whether  the  fee  was  in  the  city  or  the  individ- 
ual; but  that  in  either  case  the  landowner  was  entitled  to  damages 
for  the  injury  to  his  rights  as  adjacent  owner,  his  right  of  access, 
and  of  light  and  air.  These  cases  illustrate  this  principle  so 
clearly,  that  they  may  yet  influence  judicial  opinion  in  dealing 
with  all  the  uses  of  a  street,  and  afford  a  satisfactory  basis  upon 
which  the  rights  of  landowners  may  be  protected,  while  the 
streets  are  thrown  open  to  every  improved  method  of  accom- 
plishing their  general  public  purpose,  so  that  they  may  serve  the 
greatest  public  good. 

There  must  be  an  extension  of  the  uses  to  which  streets  are 
put,  and  so  long  as  they  serve  the  public  convenience  and  do  not 
affect  the  use  formerly  enjoyed  by  the  landowner,  there  would 
seem  to  be  no  good  reason  why  the  landowner  should  have  a 
right  to  object,  since  in  such  a  case  if  he  were  entitled  to  dam- 
ages they  would  amount  to  nothing. 

It  could  hardly  be  said,  moreover,  that  the  rule  was  settled  if  it 
should  be  found  that,  according  to  the  rule,  a  landowner  could 
object  to  the  use  of  poles  and  wires  for  the  telegraph  but  not  for 
the  electric  light,  or  to  the  use  of  a  pole  and  wire  for  the  ordi- 
nary telegraph,  but  not  for  the  fire-alarm  telegraph;  or  that  poles 
with  wires  overhead  trespass  upon  the  fee  of  the  soil,  while  wires 
underground  do  not ;  and  yet,  as  we  shall  see  presently,'  it  is 
quite  clear  that  electric  wires  for  lighting  a  city,  and  telegraph 
and  telephone  lines  for  the  fire  and  police  purposes,  are  a  proper 
use  of  the  street,  and  that  if  gas  pipes  may  be  laid  underground 
without  compensation,  there  can  be  no  objection  to  cables  for 
furnishing  electric  light  to  private  houses.  And  if  this  be  so,  it 
would  be  hard  to  exclude  the  telegraph  and  the  telephone  from 
the  use  of  the  same  subways. 

§  19.  Rights  to  Compensation  for  Actual  Damages  in  Obstructing 
Access  and  Light  and  Air,  etc. — Whatever  conclusion  may  be 
reached  as  to  the  right   to  plant   poles  without  the   landowner's 

1  Story  V.  N.  Y.  Elev.  R.  R.  Co.,  90  N.  Y.  122 ;  Lahr  v.  Met.  Elev.  R.  R. 
Co.,  104  N.  Y.  268;  Pond  v.  Met.  Elev.  R.  R.  Co.,  112  N.  Y.  1S6;  Porter 
V.  Met.  Elev.  R.  R.  Co.,  120  N.  Y.  284;  Abendroth  v.  Manh.  R.  R.  Co.,  122  N. 
Y.I.  See  also  Railroad  Co.  i'.  Bingham,  87  Tenn.  522;  ii  S.  W.  Rep.  705; 
Smith  V.  Railroad  Co.,  87  Tenn.  626;  11  S.  W.  Rep.  709;  McQuaid  v.  Port- 
land &  Vancouver  R.  R.  Co.,  18  Oreg.  237;  22  Pac.  Rep.  889. 

^  §  21,  infra. 


84  ELECTRIC  WIRES  [§  21. 

consent,  there  is  no  doubt  that  the  adjacent  owner  has  redress 
against  any  substantial  obstruction  of  his  right  of  access  or  inter- 
ference with  his  enjoyment  of  the  use  of  the  street  in  connection 
with  his  land.  This  right  of  adjacency  is  not  the  right  the  owner 
has  in  common  with  others  to  complain  of  an  obstruction  of  the 
street  to  the  inconvenience  of  general  travel.  That  is  a  matter 
over  which  the  legislature  has  control,  and  the  remedy  for  an  un- 
lawful obstruction  is  by  indictment.  The  obstruction  must  be 
one  which  interferes  with  his  enjoyment  of  his  land  with  refer- 
ence to  the  street.  For  this  he  has  a  remedy  by  injunction, 
whether  he  owns  the  fee  or  not,  and  he  has  doubtless  also  a  rem- 
edy at  common  law  for  the  disturbance  of  his  easement.' 

§  20.  No  Further  Use  than  Necessary  Allowed— Liability  for  Cut- 
ting Trees  in  the  Street. — On  the  other  hand,  even  though  it  be 
held  that  the  street  may  be  used  for  telegraph  purposes,  without 
compensation  to  the  owner  for  the  use  of  the  land,  yet  no 
further  use  is  allowed  than  is  necessary  for  the  proper  construc- 
tion of  the  line,  and  it  has  been  held,  even  where  the  fee  is  in  the 
public,  and  the  telegraph  is  constructed  for  the  public  purpose  of 
a  fire  alarm,  that  the  persons  engaged  in  putting  it  up  are  liable 
to  the  owner  of  an  adjoining  dwelling-house  for  unnecessarily 
cutting  the  branches  of  trees  growing  on  the  sidewalk.* 

§  21.  Fire  Alarm  and  Police  Telegraph— Fire  Alarm  and  Police 
Telegraph  Are  Public  Uses— No  Doubt  the  Streets  May  be  Used  for 
-These  Without  Compensation. — It  would  seem  to  be  beyond  ques- 
tion that  the  streets  of  a  city,  or  even  a  village,  might  be  used 
by  the  local  authorities  for  sending  signals  to  guard  against 
disorder  and  conflagration,  and  that  this  may  be  done  by  means 
of  posts  and  wires  in  the  streets  without  the  consent  of  abutting 
owners.  It  is  not  like  electric  lighting,  a  use  connected  directly 
with  the  streets  themselves,  but  it  is  a  municipal  use  of  the 
greatest  importance ;  and  although  it  is  a  use  which  could  not 
have  been  contemplated  when  some  of  the  streets  were  dedicated, 

^  See   Gay    v.  Mutual  Union   Teleg.  v.  Barnett,  107   111.   507.     In  this  case 

Co.,  12   Mo.  App.  485  ;   Forsythe  v.  B.  the  telegraph  was  held  to  be  an   addi- 

&  O.  Teleg.  Co.,   12   Mo.   App.   494;  tional  burden. 

Julia  Building   Assn.   v.    Bell  Teleph.  A  grant  of  a  right  of  way  for  a  tele- 
Co.  88  Mo.  2i;8.  phone  line  over  a  street  does  not  con- 

*  Tissot  V.   Great  South  Teleg.,  etc.,  fer  the  right  to  enter  private  property 

Co.,  39  La.  Ann.  996  (1887);   3  South,  and  cut  the  limbs  of   trees,  although 

Rep.  261.     For  a  case  of   cutting  the  the  limbs  project  over  the  pavement, 

branches  of  hedge  within  the  lines  of  Memphis  Bell  Teleph.  Co.  v.  Hunt,  16 

the  street,  see  Board  of  Trade  Tel.  Co.  Lea  (Tenn.)  456;  57  Am.  Rep.  237. 


§  21.]  IN   STREETS   AND   HIGHWAYS.  85 

it  is  one  which  by  common  consent  would  be  regarded  as  neces- 
sary and  proper,  and  one  which  public  opinion  would  not  allow 
individuals  to  interfere  with. 

I  am  speaking  only  of  the  claim  of  a  technical  right  in  the  soil, 
and  of  additional  servitude.  Of  course,  if  the  right  of  access 
were  interfered  with  or  the  wires  were  not  so  numerous  as  ma- 
terially to  diminish  the  light,  the  owner  might  be  entitled  to 
damages.  And  it  has  been  held  that  the  unnecessary  cutting  of 
trees  on  the  sidewalk  is  actionable,  even  though  the  fee  is  in  the 
public,  and  the  wires  are  being  put  up  for  the  city  government 
for  the  purpose  of  a  fire  alarm.' 

^  Tissot  V.  Great  Southern  Tel.  Co.,  poles  and  wires  are  a  new  burden  upon 

39   La.   Ann.   996;   3    South.  Rep.  261  the  land  of  a  highway  when  the  fee  is 

(1887).  in  the   owner   of  the   adjoining   land, 

In  a  case  decided  since  this  chapter  although  it  is  not  so  when  the  fee  is  in 

was  printed,  it  was  held  by  the  United  the  public.     Pacific  Postal  Teleg.  Ca- 

States  district  judge  for  the  Southern  ble  Co.  v.  Irvine,  U.  S.  C.  C,  S.  D.  Cal., 

District   of  California  that   telegraph  January  19,  1892,  49  Fed.  Rep.-i73. 


86  ELECTRIC   WIRES  IS  I, 


CHAPTER  IX. 

RIGHTS   OF  ABUTTING   OWNERS — ELECTRIC   LIGHT  WIRES. 

§  1.  The  Purpose  of  the  Use  Being  an  Important  Element,  Electric 
Light  Wires  May  be  Analogons  to  Gas  Pipes  Rather  than  to  Telegraph 
Lines. — Since  the  purpose  for  which  the  wires  are  used  is  an  im- 
portant element  in  the  decisions  on  the  question  whether  they 
are  a  legitimate  use  of  the  streets,  it  is  obvious  that  the  decisions 
in  regard  to  the  telegraph  and  telephone  may  not  apply  to  the 
poles  and  wires  for  electric  lighting.  The  poles  may  be  the  same 
and  the  wires  may  be  more  dangerous,  and  yet  the  purpose  of  the 
use  may  be  such  as  to  bring  the  electric  light  wires  plainly  within 
the  necessary  uses  of  a  street,  while  the  telegraph  and  the  tele- 
phone may  remain  entirely  outside  of  the  uses  which  the  courts 
allow  to  be  proper. 

Electric  light  wires  are,  like  gas  pipes,  a  means  of  furnishing 
light  from  a  central  source  of  supply,  and  whether  they  are  car- 
ried in  tubes  under  the  street,  or  strung  on  poles  overhead,  it 
would  seem  that  their  legal  relations  to  the  streets  and  highways 
must  be  analogous  to  those  of  gas  pipes,  and  that  it  is  safe  to 
refer  to  the  law  governing  gas  pipes  for  the  principles  applicable 
to  the  electric  light  wires.  It  would  seem  to  be  clear  that  the 
rights  of  the  abutting  owner  must  be  the  same  with  respect  to 
one  as  to  the  other,  and  that  if  the  laying  a  gas  pipe  in  a  city 
street  or  country  highway  is  or  is  not  an  additional  servitude  on 
his  land,  the  same  would  be  true  of  laying  a  tube  for  electric  light 
wires,  or  placing  posts  in  the  ground  for  carrying  the  wires 
overhead. 

There  is,  indeed,  a  difference  between  pipes  underground, 
whether  for  gas  or  electricity,  and  posts  and  wires  above  the  sur- 
face, in  that  the  latter  are  to  some  extent  an  obstruction  of  the 
street ;  but  the  obstruction  of  a  street  is  a  public  injury,  and 
affects  private  rights  only  so  far  as  it  affects  the  right  of  ingress 
and  egress,  and  the  use  of  the  street  in  connection  with  the  adjoin- 
ing land.  If  the  public  authorities  allow  the  obstruction,  the 
landowner  has  no  right  to  complain  unless  it  diminishes  the  bene- 
fits conferred  on  his  land  by  the  opening  of  the  street.  If  the 
value  of  his  adjoining  land  is  affected,  he  is  entitled  to  compensa- 
tion for  the  obstruction ;  but  so  far  as  his  right  is  based  upon  his 


I  2.]  IN   STREETS   AND    HIGHWAYS.  8/ 

ownership  of  the  soil  in  the  street,  there  is  no  difference  between 
a  tube  underground  and  posts  and  wires  in  and  above  the  sur- 
face, and  if  this  right  depends  upon  whether  or  not  there  is  a 
perversion  of  the  uses  of  a  street,  there  is  a  close  analogy,  as  I 
have  said,  between  gas  pipes  and  tubes  or  overhead  wires  for 
electric  lighting. 

§  2.  Whether  Gas  Pipes  May  be  Laid  in  Country  Roads  or  City 
Streets  Without  Compensation. — It  has  been  held  by  the  court  of 
appeals  of  New  York'  that  a  gas  company  has  no  right  to  lay 
down  a  main  line  of  gas  pipe  in  a  country  highway  without  the 
consent  of  the  owner  of  an  adjoining  farm  or  compensation  made 
to  him.  Such  a  use  of  the  street,  the  court  said,  would  interfere 
with  the  soil  and  freehold  to  a  greater  extent  than  was  ever  con- 
templated  when  the  land  was  taken  for  the  ordinary  purposes  of 
a  highway,  but  the  court  conceded  that  there  might  be  a  distinc- 
tion in  this  respect  between  the  street  of  a  city  and  a  highway  in 
the  country. 

With  regard  to  cities,  Judge  Dillon,  in  his  work  on  Municipal 
Corporations,  says,  it  seems  to  him  to  be  clear,  that  the  use  of  the 
streets  under  legislative  or  municipal  sanction  for  the  purpose  of 
laying  down  gas  pipes  or  other  pipes  for  the  purpose  of  supplying 
the  city  and  its  inhabitants  with  light,  is  a  legitimate  use  of  the 
streets,  for  which  the  abutting  owner  is  not  entitled  to  compen- 
sation. "Such,"  he  says,  so  far  as  he  knows  "is  the  general  under, 
standing  of  the  pubHc  and  the  profession."" 

So  also  Mr.  Lewis,  in  his  work  on  Eminent  Domain  (§  129), 
says :  "Gas  is  not,  like  water,  a  necessity,  in  the  sense  of  being  ab- 
solutely indispensable,  but  it  has  become  a  practical  necessity  in 
all  urban  communities.  The  right  to  lay  gas  pipes  in  the  streets 
of  cities  and  villages  has  never  been  questioned,  but  has  often 
indirectly  received  judicial  sanction.  But  a  country  highway 
cannot  be  used  for  the  purpose  of  conveying  natural  gas  to  a 
distant  city.  This  is  an  additional  burden  for  which  compen- 
sation must  be  made." 

1  Bloomfield  &   R.   Nat.  Gasl.  Co.  v.  Q^B.  42;  Queen  v.  Charlesworth,  16  Q. 

Calkins,  62  N.  Y.  386  (1S75).  B.  1012;   Queen  v.  Train,  9  Cox.  Cr. 

In  England  it  has  been  held  that  gas  Cas.   180;    Thompson   v.     Sunderland 

pipes  cannot  be  laid  in  a  highway  with-  Gas   Co.,  L.  R.,  2   Ex.  Div.  429.     See 

out  express  legislative  sanction.     Re-  Boston  v.   Richardson,  13  Allen    146, 

gina  V.  Sheffield  Gas  Co.  (Ct.  of  Q^B.,  iCo,  per  Gray,  J. 

June  4,  1853);  22  Eng.  Law  &  Eq.  200;  ^2    Dillon's     Mun.    Corp.,    4th    ed., 

Galbreath  v.  Armour,  4  Bell  App.  Cas.  §  691,  note.     See  also  Elliott  on  Roads 

374;  Ellis  V.  Sheffield  Gas  Co.,  23  L.  J.,  and  Streets,  p.  305. 


88  ELECTRIC   WIRES  [§  3. 

Mr.  Lewis  refers  to  cases*  and  proceeds  to  make  an  application 
of  the  principle  so  as  to  include  wires  for  electric  lighting.  He 
says  :  "  Within  the  principle  of  the  foregoing  cases  would  be  the 
laying  of  pipes  in  the  streets  for  the  purpose  of  conducting  and 
distributing  gas  or  steam  for  heating,  or  the  laying  of  subterra- 
nean cables  or  wires  for  supplying  electricity,  either  for  lighting  or 
other  general  use.^  So,  poles  may  be  set  and  wires  strung  in  a 
street  for  the  purpose  of  lighting  the  same  with  electric  light,  or 
operating  a  fire  alarm,  or  aiding  the  police  service.'" 

§  3.  Distinction  Between  Urban  and  Rural  Easements.* — There  is 
certainly  a  difference  with  respect  to  the  uses  to  which  they 
would  ordinarily  be  put  between  city  streets  and  country  roads. 
"With  reference  to  the  latter,"  Judge  Dillon  says  "  all  the  pub- 
lic requires,  is  the  easement  of  passage  and  its  incidents  ;  "  while 
with  respect  to  streets  in  populous  places,  public  convenience 
requires  more  than  the  right  to  pass  over  and  upon  them.*" 
With  the  rapid  growth  of  population  around  the  large  cities,  it 
is  not  always  easy  to  distinguish  between  city  streets  and  country 
roads.  Suburban  roads  soon  require  the  conveniences  of  city 
streets,  and  as  electric  light  wires  are  not  often  carried  where 
there  are  so  few  houses  that  the  light  is  not  needed  along  the 
line  of  the  street,  it  is  hardly  necessary  to  decide  whether  they 
would  be  an  additional  servitude  upon  the  land  in  such  a  case. 
It  is  pretty  safe  to  say  that,  if  the  poles  and  wires  may  be  used 
in  city  streets  without  compensation,  they  may  be  used  in  the 
same  way  wherever  they  are  needed  for  the  same  reason,  and,  on 
the  other  hand,  they  might  well  be  called  an  additional  burden 
if  the  road  were  merely  used  as  a  convenient  line  for  extend- 
ing the  wires  from  one  town  to  another,  so  that  the  wires  cannot 

'  The  cases  cited  are  Story  v.  N.  Y.  cited  in  support  of  this  paragraph  are 

Elev.   R.  R.  Co.,  90  N.  Y.,  at  p.  161;  Carli  v.  Railroad  Co.,  28  Minn.,  at  p. 

West  V.Bancroft,  32  Vt.  371;  Thomp-  376;  People  v.  Thompson,  65  How.  Pr. 

liinsv.  Hodgson,  2  Hun  146;  questioned  407.     See    also    observations    on    the 

in  Boston   v.  Richards,   13  Allen  146,  power  of  municipalities  to  grant  elec- 

160.    Also  as  to  natural  gas  in  a  country  trie  light  companies  the   right  to  use 

highway.     Bloomfield,  etc.,  Gasl.    Co.  the    streets,   supra,    Chapter   II,   §  11, 

V.    Calkins,    62    N.    Y.    386;    s.  c,    i  with  the  cases  there  cited. 
Thomp.  &   Cook,  541,  549;  Sterling's        *  As  to  the  distinction  between  ur- 

Appeal,  III  Pa.  St.  35.  ban  and  suburban  servitudes  with  ref- 

^  This    probably    refers    to    electric  erence  to  the  use  of  the  streets,  see 

power;     but    it    would    seem    to    in-  Elliott  on  Roads   and   Streets,  ch.  18; 

elude  the  telephone,  which  is  now  so  Angell  on  Highways,  3d  ed.,  §  91c. 
generally  used.  ^  2     Dill.     Mun.     Corp.,     4th     ed., 

^  Lewis'  Em.  Dom.,  §  130.     The  cases  §  683. 


§5-] 


IN   STREETS   AND   HIGHWAYS. 


89 


be  said  to  be  intended  for  the  use  of  those  who  travel  upon,  or 
live  upon  the  road.' 

§  4.  Pipes  or  Poles  and  Wires  for  Lighting  the  Streets  a  Proper  Use 
Wherever  They  Are  Needed  for  That  Purpose. — It  seems  to  be  well 
settled,  that  wherever  there  is  a  local  government  with  power  to 
regulate  streets,  whether  it  be  a  village,  a  borough  or  a  city,  the 
local  authorities  have  power,  with  the  sanction  of  the  legislature, 
to  provide  for  lighting  the  streets,  and  either  to  lay  down  gas 
pipes  or  set  up  poles  with  electric  wires  for  that  purpose,  and 
that  an  abutting  landowner  is  not  entitled  to  compensation  for 
the  mere  use  of  the  soil,  or  for  anything  except  injury  to  his 
easement,  or  damages  arising  from  negligent  construction.' 

§  5.  Cases. —  In  Johnson  v.  Thompson-Houston  Co.*  it  was  held 
that  where  a  village  has  by  law  the  control  of  streets,  the  village 
may  authorize  the  erection  of  poles  therein  for  the  purpose  of 
lighting  the  streets,  and  that  the  fact  that  a  pole  is  also  used  for 
private  purposes  does  not  entitle  the  landowner  to  have  it 
removed,  so  long  as  it  is  reasonably  necessary  and  proper  for  the 
public  service.  On  the  other  hand,  in  a  case  in  Ohio,  where  the 
public  purpose  of  the  light  does  not  appear  to  have  been 
involved,  it  was  held  that,  even  though  the  fee  of  the  land  be  in 
the  public,  the  city  cannot,  without  obtaining  the  consent  of  an 
abutting  owner,  authorize  an  electric  lighting  company  to  plant 
a  pole  in  front  of  his  land.* 


'  It  has  been  recently  decided  in 
Indiana,  that  pipes  for  conveying  nat- 
ural gas  for  fuel  from  the  wells  to  a  town 
cannot  be  laid  in  a  suburban  high- 
way without  compensation  made  tothe 
abutting  owner.  Kincaid  v.  Ind.  Nat. 
Gas  Co.  (1890),  121  Ind.  577;  19  Am. 
St.  Rep.  113;  8  L.  R.  A.  602;  42  Alb. 
L.  J.  208;  24  N.  E.  Rep.  1066;  8  Ry.  & 
Corp.  L.  J.  242. 

*  Lewis  on  Em.  Dom.,  §  129;  2  Dil- 
lon's Mun.  Corp.,  §  691. 

For  cases  in  regard  to  gas  pipes  in 
streets,  see  Milhau  v.  Sharp,  15  Barb. 
210;  Norwich  Gaslight  Co.  v.  Nor- 
wich City  Gas.  Co.,  25  Conn.  19  (1S56) 
(exclusive  franchise)  ;  Smith  v. 
Metrop.  Gasl.  Co.,  12  How.  Pr.  (N. 
Y.)  187  (1855);  People  V.  Bowen,  30 
Barb.  24(1859). 

Pipes  for  conveying  natural  gas  un- 


der a  country  roadway  are  an  addi- 
tional servitude.  Sterling's  Appeal, 
III  Pa.  St.  35;  Kincaid  v.  Ind.  Nat. 
Gas  Co.,  121  Ind.  577  (1S90) ;  24  N.  E. 
1066;  8  L.  R.  A.  602 ;  8  Ry.  &  Corp.  L. 
J.  242  ;  42  Alb.  L.  J.  208.  'Especially  if 
the  pipes  are  used  for  fuel  gas  as  distin- 
guished from  lighting.  Webb  v.  Ohio 
Gas.  Fuel  Co.,  16  Ohio  Week.  Bull. 
121.  But  in  this  case  it  was  held  that 
if  the  landowner  does  not  own  the  fee 
in  the  street  he  is  not  entitled  to  dam- 
ages unless  the  gas  escapes. 

Injunction  granted  to  remove  water 
pipes  laid  in  a  highway  without  con- 
sent. Goodson  V.  Richardson,  L.  R., 
9  Ch,  App.  221. 

=•7  N.  Y.  Supp.  716(1890). 

*  McLain  v.  Brush  Electric  Light 
Co.,  9  Bulletin  (Cincinnati)  65.  The 
learned    judge    argues    that    if   poles 


90  ELECTRIC   WIRES  [§  5. 

Judge  Haight,  of  the  New  York  Superior  court,  in  1883/ 
declined  to  interfere  with  poles  and  wires  put  up  in  the  streets  of 
New  York  under  an  ordinance  authorized  by  the  legislature. 
It  was  objected  that  the  statute  was  unconstitutional  because  it 
did  not  provide  for  compensation  to  the  owners  of  abutting  land. 
He  said  that  lamp  posts  for  lighting  the  streets  were  admitted  to 
be  a  proper  use  of  them,  and  that  it  seemed  to  him  that  planting 
the  necessary  poles  for  bearing  the  wires  that  transmit  the  elec- 
tricity to  the  lamps  was  among  the  public  uses  to  which  the 
streets  might  properly  be  devoted.  But  in  a  later  case  in  the 
Supreme  court,''  O'Gorman,  J,,  at  special  term  took  a  distinction 
between  the  lamp  posts  and  the  poles  used  for  supporting  the 
wires,  and  granted  an  injunction  until  it  should  be  ascertained 
that  they  did  not  interfere  with  the  access  or  light  and  air  of  the 
adjoining  owner.  Vice-Chancellor  Van  Fleet,  in  a  case  already 
referred  to,^  speaking  of  the  poles  set  up  in  the  middle  of  the 
street  for  an  electric  railway,  some  of  which  were  also  used  for 
lighting  the  street,  said  there  could  be  no  doubt  that  erections 
can  be  lawfully  made  in  the  streets  for  the  purpose  of  lighting 
them,  and  that  this  use  of  the  poles  and  wires  would  legalize 
their  erection. 

In  the  New  York  Supreme  Court^  a  preliminary  injunction  was 
allowed  to  stand  against  interfering  with  poles  put  up  in  the 
streets  of  a  village  to  carry  wires  for  the  purpose  of  lighting  a 
neighboring  village  as  well  as  the  village  where  they  were,  the 
complaint  alleging  that  the  poles  formed  a  part  of  a  line  neces- 
sary for  the  lighting  of  the  latter  village  under  a  contract. 

could  be  put  up,  they  might  be  put  up  67  How.   Pr.  73.     See  also  People  v. 

so  as  to  be  like  a  picket   fence  ;  but  the  McManus,  32  Hun  93. 

question  was  not  whether  the   defend-  ^Halsey  v.   Rapid    Transit    St,    Ry. 

ants  had   a  right   to  put   up  a   picket  Co.,  47  N.  J.  Eq.  380,  Chapt.  II,  §  19. 

fence,  but  a  telegraph  line,  which  is  a  *  Electric  Constr.  Co.  v.    Heflferman, 

very  different  thing;  and   if  the   poles  34  N.  Y.  St.  Rep.  436;  12  N.  Y.  Supp. 

were  put  too  near  together,  the   land-  336(1890).    There  was  evidence  of  au- 

owner  would  have  his    remedy  for    in-  thority  to  put  up  the  poles.     They  had 

jury  to  his  easement  of  access.     If  the  been  cut  down  before,  and   there   was 

courts   would    bear   in  mind  that  the  danger  of  their  being  interfered   with 

landowner   has  a  substantial  right  in  pending  the  suit.     It    was    held   that 

the  street  as  street,  they  would  not  have  poles  erected   for   electric  lighting  in 

to  trouble  themselves    so   much   over  a    highway    cannot    be    lawfully   cut 

his  rights  in  the  land  as  land.  down  by  a  private  person  as    a    nui- 

^  People  ex    rel  Thompson    v.   Mc-  sance  obstructing   the   highway,  even 

Manus,  65  How.  Pr.  407.  though  they  might  be  abated   by  ac- 

^  Tiffany  v.  U.  S.   Illuminating  Co.,  tion. 


§  7-]  IN   STREETS   AND   HIGHWAYS.  9I 

§  6.  Is  There  a  Distinction  Between  Wires  Used  Solely  for  Public 
Lighting  and  Those  Used  for  Private  Buildings  Also? — This  case 
seems  to  suggest  that  there  may  be  a  difference  between  wires 
used  for  the  public  purpose  of  lighting  a  city,  and  wires  used  for 
some  other  purpose. 

There  is  a  case  in  New  York  in  which  this  distinction  is  taken. 
The  charter  of  an  electric  lighting  company  gave  it  power  to 
furnish  light  to  the  city  corporation  for  the  streets,  and  also  to 
individuals  for  lighting  private  houses,  and  the  court  said  the 
former  might  involve  a  public  and  ordinary  use  of  the  streets, 
while  the  latter  would  involve  a  private  use ;  and  it  was  held  that 
the  company  must  show  that  the  pole  in  question  was  necessary 
or  highly  convenient  for  the  public  as  well  as  the  private  use,  or 
else  an  injunction  granted  would  be  allowed  to  stand.'  The  dis- 
tinction, however,  is  not  made  with  respect  to  pipes  for  lighting 
by  gas.  It  seems  to  be  now  conceded  that  city  streets  may  be 
used  for  gas  pipes  without  compensation  to  abutting  owners, 
whether  it  be  for  the  purpose  of  supplying  private  houses  or  for 
the  purpose  of  lighting  the  streets  and  public  places.''  The  pipes 
used  for  both  purposes  are  generally  the  same  ;  the  purpose  is, 
in  a  sense,  necessary  and  general,  and  the  streets  are  the  most 
convenient  if  not  the  only  means  of  access.  The  same  conditions 
apply  to  the  electric  light ;  the  only  difference  is  in  the  additional 
poles  required  for  carrying  the  wires,  and  it  can  hardly  be  main- 
tained that  they  make  a  difference  in  principle.  If  the  purpose 
is  a  public  purpose  for  which  the  streets  may  be  used,  it  would 
seem  that  compensation  could  not  properly  be  required  for  the 
mere  occupation  of  the  soil  by  a  pole  any  more  than  by  a  gas  pipe. 

§  7.  Liability  for  Actual  Interference  with  Rights  and  Privileges  of 
Adjacency  to  Highway. — It  does  not  follow  that  the  landowner  is 
without  redress  if  poles  be  put  up  so  as  to  interfere  with  his  ac- 
cess, or  even  so  as  to  be  inconvenient  or  unsightly,  or  if  wires  be 
hung  so  as  to  be  dangerous,  or  so  as  to  prevent  ready  access  in 
case  of  fire.  The  landowner  has  a  right  to  the  free  use  of  the 
highway  for  access  and  other  purposes  relating  to  the  pleasant 
enjoyment  of  his  land,  and  all  these  rights  and  privileges  arc 
under  the  protection  of  the  courts.' 

1  Tiffany  v.  U.  S.  Illuminuting  Co.,  50  N.  Y.  Superior  Ct.  280  (1885.) 
*  Chapter  IX,  §  2,  and  Chapter  VII,  supra.     See  also  Opinion  of  the  Justices 
Re  Manufacture  of   Gas  and   Electric  Light  by  Municipal  Corporations,   150 
Mass.  592  ;  8  L.  R.  A.  487,  with  note ;  and  Crooke  v.  Flatbush  Water  Works  Co., 
29  Hun.  245. 

'Tiffany  v.  U.  S.  Illuminating  Co.,  67  How.  Pr.  73. 


92  ELECTRIC  WIRES  [§  3. 


CHAPTER  X. 

RIGHTS  OF  ABUTTING  OWNERS — THE  ELECTRIC  RAILWAY. 

§  1.  Opposition  to  the  Introduction  of  the  Trolley  System. — The 
latest  use  of  poles  and  wires  in  the  streets  is  to  supply  the 
motive  power  for  electric  railways.  Wires  are  not  only  strung 
along  the  street,  but  across  it  also,  and  poles  are  set  not 
only  along  the  side  of  the  footpath,  but  also  along  the  middle 
of  the  street.  The  new  motor  makes  a  disagreeable  noise  ; 
the  cars  run  fast,  and  are  thought  to  be  dangerous  ;  the  poles  and 
wires  are  objectionable  to  many  persons,  and  for  these  and  other 
reasons  there  is,  in  many  cases,  vigorous  opposition  made  to  the 
introduction  of  the  overhead  or  trolley  system,  and  this  opposition 
is  sometimes  made  by  or  through  the  owners  of  property  along  the 
line  of  the  street.  It  is  important,  therefore,  both  for  property 
owners  and  the  railroad  companies  to  know  what  are  the  rights 
of  the  owners  of  abutting  land  with  respect  to  the  placing  of  poles 
and  wires  in  the  streets  for  the  electric  railway. 

§  2.  Peculiar  Rights  of  the  Landowners  in  the  Street. — There  is  no 
doubt  but  that  the  landowner  has  a  peculiar  interest  in  maintain- 
ing the  use  of  the  street  for  the  proper  purposes  of  a  street,  and 
that  he  has  property  rights  in  the  use  of  the  street  as  such  in  con- 
nection with  his  land.  He  has  the  right  of  free  access  to  the 
street,  and  the  right  to  receive  light  and  air  upon  his  land  from 
over  the  street,  and  all  the  advantages  of  owning  land  upon 
a  public  street.  These  are  rights  in  the  nature  of  an  easement, 
and  belong  to  him  as  owner  of  the  land  and  not  merely  as  a  part 
of  the  public  use.  In  addition  to  these  rights,  the  abutting  land- 
owner may  have  a  title  to  the  land  to  the  middle  of  the  street,  or 
if  the  fee  is  in  the  public,  it  is  held  in  trust  for  street  purposes, 
so  that  he  still  has  an  interest  in  preventing  a  perversion  of  the 
purposes  for  which  it  was  taken. 

^  3.  Two  Questions  to  be  Considered  —  Rights  of  Adjacency  and 
Perversion  of  the  Uses  of  the  Street. —  In  inquiring,  therefore, 
whether  the  landowner  is  entitled  to  compensation  for  the  use  of 
the  streets  for  the  electric  railway,  there  are  two  questions  to  be 
considered:  first,  whether  he  suffers  injury  with  respect  to  his  rights 
in  the"use  of  the  street  as  owner  of  the  abutting  land,  and,  sec- 
ondly, whether  the  new  use  is  an  additional  servitude  upon  the 


§  4-]  IN    STREETS   AND   HIGHWAYS.  93 

land  in  the  street  owned  by  him,  or  a  violation  of  the  trust  upon 
which  the  land  is  held  by  the  public  for  the  purposes  of  a  street. 

With  respect  to  the  first  point  there  is,  first,  a  question  of  fact 
as  to  whether  there  is  in  this  case,  as  it  is  held  there  is  in  the 
case  of  elevated  railroads,  actual  damage  in  the  way  of  interfer- 
ence with  access  and  light  and  air,  and,  secondly,  a  perversion  of 
use  by  which  the  owner  is  deprived  of  some  of  the  advantages  of 
his  adjacency  to  a  public  street;  and  with  respect  to  the  second 
point,  the  question  is  also  whether  there  is  a  perversion  of  the 
use  or  such  a  new  use  as  in  either  case  to  impose  a  new  servi- 
tude upon  the  land,  or  to  violate  the  trust  upon  which  the 
land  is  held  by  the  public. 

These  distinctions  having  been  pointed  out,  we  may  reserve 
the  question  of  actual  damage  and  consider  the  question  of  the 
change  of  use  of  the  street  with  respect  to  the  ownership  of 
the  land,  and  also  with  respect  to  the  right  to  use  the  street  as  a 
street. 

§  4.  Questions  Suggested  by  Judge  Dillon  on  the  Decision  in  Tag- 
gart  V.  Newport  Street  Railway,  in  January,  1890. — The  subject 
has,  of  course,  been  only  recently  considered  with  reference  to 
the  electric  railway. 

Judge  Dillon,  in  the  last  edition  of  his  book  on  Municipal  Cor- 
porations,' refers  to  a  recent  case  in  Rhode  Island,  decided  while 
his  book  was  in  press,  in  which  it  was  held  that  the  erection  of 
poles  in  the  streets,  with  wires,  for  the  purpose  of  propelling  street 
cars  by  electricity,  did  not  entitle  the  owner  to  compensation.^ 
The  company  had  authority  from  the  legislature  to  use  steam, 
horse  or  other  power,  as  the  city  council  might  from  time  to 
time  direct,  and  the  council  had  given  permission  to  use  elec- 
tricity, with  poles  and  wires.  On  an  application  by  an  owner  of 
abutting  land  for  injunction,  the  Supreme  court  held  that,  since 
there  was  no  change  in  the  mode  of  using  the  streets,  but  only 
in  the  motive  power,  there  was  no  additional  servitude.  The 
court  distinguished  this  case  from  those  relating  to  telegraph 
and  telephone  wires  by  saying  that  these  are  not  used  to  facili- 
tate the  use  of  the  streets  for  travel  and  transportation,  "  whereas 
the  poles  and  wires  of  the  railroad  company  are  directly  ancillary 
to  the  uses  of  the  street  as  such,  in  that  they  communicate  the 
power  by  which  the  cars  are  propelled."     Judge  Dillon  throws 

^2  Dill.  Mun.  Corp.,  §  734r,  note,  i6  R.  I.  668;  19  Atl.  Rep.  326;  2  Am.  R. 
4th  ed.  R.  Sc  Corp.  Rep.  44,  with  note  ;  7  L.  R. 

^Taggartv.  Newport  Street  R.R. Co.,     A.  205,  with  note  (January  25,  1S90). 


94  ELECTRIC   WIRES  [g  5. 

discredit  upon  this  decision  by  saying :  **  The  distinction  last 
mentioned  is  so  fine  as  to  be  almost  impalpable,  and  it  suggests 
serious  doubts  whether  both  conclusions  are  sound  and  recon- 
cilable. The  general  subject  awaits  further  development  and 
settlement.  "  This  remark  was  made  less  than  two  years  ago, 
and  the  subject  is  already  being  rapidly  developed,  and  must 
soon  reach  a  settlement.  The  law  must  follow  close  upon  the 
progress  of  invention,  and  the  application  of  electricity  to 
street  railroads  is  being  made  so  quickly  and  so  generally  that 
the  conclusions  of  the  law  in  regard  to  the  use  of  the  new  power 
cannot  be  long  delayed. 

It  is,  of  course,  too  soon  yet  to  attempt  to  say  how  the  ques- 
tions will  be  settled  by  the  general  concurrence  of  decisions  or  by 
the  weight  of  authority,  but  we  may  consider  some  of  the  princi- 
ples involved  in  the  discussion,  and  refer  to  the  cases  which  have 
been  decided  in  various  courts  since  this  remark  of  Judge 
Dillon's  upon  the  case  determined  in  Rhode  Island  in  January, 
1890. 

§  5.  The  Electric  Eailway  and  the  Telegraph — Distinctions  and 
Comparisons. — It  is  hard  to  tell  whether  Judge  Dillon  means  to 
suggest  that  the  courts  were  mistaken  in  holding  that  the  tele- 
graph and  the  telephone  do  not  come  within  the  natural  and 
proper  uses  of  the  street,  or  whether  he  thinks  that  it  is  going  too 
far  to  allow  the  electric  'railway.  It  may  well  be  that  the  dis- 
tinction between  the  telegraph  and  the  railway  is  not  sound,  and 
yet  that  the  railway  is  a  proper  use  of  the  street.  Whether  both 
are  to  be  included  in  the  same  class  depends  a  good  deal  on  the 
breadth  of  the  view  that  is  taken  of  the  proper  uses  of  a  street. 
If  these  are  confined  to  travel  and  transportation,  then  the  rail- 
way may  be  included,  while  the  telegraph  is  left  out ;  but  if  the 
use  of  the  street  is  to  provide  for  communication,  then  it  would 
seem  to  be  just  as  well  to  send  messages  along  it  upon  wires  ar- 
ranged for  the  purpose  as  to  send  them  on  by  men  on  horseback, 
or  in  heavy  wagons  carrying  the  mails.  It  has  been  held,  as  we 
have  seen,  in  Massachusetts  and  Missouri,  that  the  telegraph  is 
not  a  new  burden  upon  the  streets  ;'  and  in  the  numerous  cases 
in  which  it  is  held  otherwise,  it  was  so  held  upon  the  ground 
that  the  telegraph  and  telephone  are  not  used  to  facilitate  public 
travel,  and  that  if  they  do  transmit  intelligence,  they  do  so  by  a 

^  Pierce  v.  Drew,  136  Mass.  75  (18S3);  Julia  Building  Association  v.  Bell 
Teleph.  Co.,  88  Mo.  258  (1885) ;    supra,  Chapter  VII. 


§  7.]  IN   STREETS   AND   HIGHWAYS.  95 

method  so  different  from  the  ordinary  use  of  the  streets  as  not  to 
come  within  the  public  easement.' 

On  the  whole,  it  is  safe  to  say  that  these  decisions  against  the 
use  of  the  streets  for  the  telephone  and  telegraph  are  not  suffi- 
cient to  determine  the  question  of  the  use  of  the  streets  by  the 
electric  railway,  and  whether  the  distinction  drawn  in  the  Rhode 
Island  case  is  sound  or  not,  the  question  of  the  use  of  the  electric 
railway  must  be  decided  by  itself. 

§  6.  Is  the  Electric  Railway  a  New  Burden  or  a  Perversion  of  the 
Uses  of  the  Street — Comparison  With  Other  Railroads  on  the  Street. 
— The  question  is,  whether  the  poles  and  wires,  and  the  street 
railway  operated  by  electricity,  constitute  a  new  burden  upon  the 
land  or  a  perversion  of  the  true  uses  of  a  street,  so  as  to  entitle 
the  adjacent  owner  to  compensation  without  respect  to  actual 
damages. 

The  electric  railway,  as  now  generally  used,  is  applied  to  the 
same  purposes  and  operated  in  the  same  manner,  with  respect  to 
the  running  and  stopping  of  the  cars,  as  the  horse  railway.  It  is 
a  street  railway,  or  what  is  called  a  city  passenger  railway,  oper- 
ated with  a  new  motive  power,  and  with  new  appliances,  but  for 
the  same  purposes  as  the  old  form  of  street  railway. 

It  seems  probable  that  electricity  will  soon  be  used  to  propel 
cars  at  a  high  rate  of  speed,  and  on  lines  running  along  country 
roads  the  electric  motor  even  now  takes  the  place  of  the  steam 
dummy,  if  not  of  the  locomotive.  Hence  it  is  obvious  that  the 
electric  railway  is  analogous  to  other  railways  and  resembles  one 
or  another  kind  according  to  the  uses  to  which  it  is  put.  It  is 
important,  therefore,  to  inquire  what  has  been  decided  with  re- 
spect to  use  of  the  streets  by  the  older  forms  of  railway,  whether 
one  or  another  has  been  held  to  be  an  additional  servitude,  and 
for  what  reason.  We  may  in  this  way  obtain  a  rule  and  a 
reason  with  respect  to  the  various  uses  of  the  streets  by  the 
electric  railway.  The  subject  has  been  fully  discussed  by  the 
text-writers,  and  I  need  only  quote  their  conclusions  and  refer 
to  the  cases. 

§  7.  Horse  Railroads  are  Generally  Held  to  be  a  Proper  Use  of  the 
Street  Imposing  No  New  Burden — Dissenting  Opinions. — There  is  a 
very  general  agreement  of  authorities  that  the  use  of  a  street  for 
a  horse  railroad  is  a  legitimate  use  of  it  for  public  travel  consistent 

»  2  Dill  Mun.  Corp.,  §  698,  698«,  note,  Transit  Street  Ry.  Co.,  47  N.  J.  Eq. 
citing  cases;  Lewis'  Em.  Dom.,  §§  380;  20  Atl.  Rep.  859,  864,  per  Van 
131,  226,  citing  cases;  Halsey  v.  Rapid     Fleet,  V.  C. 


96 


ELECTRIC  WIRES 


[§7. 


with  the  purposes  for  which  it  was  laid  out,  and  does  not 
impose  a  new  burden  upon  the  land.  In  many  of  the  older  cases 
a  distinction  is  made  between  cases  in  which  the  fee  of  the  street 
is  in  the  abutter  and  those  in  which  the  fee  is  in  the  city ;  but 
this  distinction  is  not  now  generally  approved,  and  it  seems  to  be 
accepted  that  in  either  case  a  horse  railroad  authorized  by  statute 
is  not  inconsistent  with  the  rightful  use  of  a  street.' 

Mr.  Lewis,  in  his  recent  work  on  Eminent  Domain,  says:  "It 
has  been  determined  in  numerous  decisions,  and  without  dissent, 
except  in  New  York,  that  the  use  of  the  street  by  a  horse  railroad, 
constructed  and  operated  in  the  ordinary  manner,  falls  within  the 


*  Hinchman  v.  Paterson  H.  R.  R.  Co. 
17  N.  J.  Eq.  75;  Hogencamp  v.  Same, 
17  N.  J.  Eq.  83  ;  Jersey  City  and  Bergen 
R.  R.  Co.  V.  Jersey  City  &  Hoboken 
H.  R.  R.  Co.,  20  N.  J.  Eq.  61 ;  Pater- 
son &  Passaic  H.  R.  R.  Co.  v.  Pater- 
son, 24  N,  J.  Eq.  158;  West  Jersey  R. 
R.  Co.  V.  Cape  May  &  S.  I.  R.  R. 
Co.,  34  N.  J.  Eq.  164 ;  Brooklyn  City 
R.  R.  Co.  V.  Coney  Island  R.  R.  Co., 
35  Barb.  364;  People  v.  Kerr,  27  N.  Y. 
188  ;  Kellinger  v.  Forty -second  St.,  etc., 
R.  R.  Co.,  50  N.  Y.  206;  Elliott  v.  Fair- 
haven  &  Westville  R.  R.  Co.,  32  Conn. 
579  (at  Nisi  prius) ;  Cincinnati  R.  R. 
Co.  V.  Cumminsville,  14  Ohio  St.  523 ; 
Hussner  v.  Brooklyn  City  R.  R.  Co., 
114  N.  Y.  433;  21  N.  E.  Rep.  1002;  ii 
Am.  State  Rep.  679,  wi|h  note;  Clin- 
ton V.  Clinton  &  Lyons  H.  R.  R.  Co., 
37  Iowa  61  ;  Stanley  v.  Davenport,  54 
Iowa  463;  Stange  v.  Hill  &  West  Du- 
buque Street  R.  R.  Co.,  54  Iowa  669; 
Sears  v.  Marshalltown  St.  R.  R.  Co.,  65 
Iowa  742 ;  Eichels  v.  Evansville  Street 
R.  R.  Co.,  78  Ind.  261  ;  Savannah  v. 
Savannah  &  Thunderbolt  R.  R.  Co., 
45  Ga.  602,  (but  it  has  been  held  in 
Georgia  that  under  a  provision  of  the 
constitution,  directing  that  property 
shall  not  be  taken  or  damaged  without 
compensation,  an  action  may  be  main- 
tained by  an  owner  whose  property  is 
damaged  by  a  street  railway,  and  that 
it  is  immaterial  that  it  is  not  a  new 
use  of  the  street,  Campbell  v.  Met. 
R.  R.  Co.,  82  Ga.  320;   9  So.   E.  Rep. 


1078);  Carson  v.  Central  R.  R.  Co.,  35 
Cal.  325  ;  Market  St.  R.  R.  Co.  v.  Cen- 
tral R.  R.  Co.,  51  Cal.  583;  Finch  V. 
Riverside  &  Arlington  R.  R.  Co.,  87 
Cal.  597  ;  25  Pac.  Rep.  765  ;  Brown  v. 
Duplessis,  14  La.  Ann.  842;  Piddicord 
V.  Baltimore,  etc.,  R.  R.  Co.,  34  Md. 
463;  Hiss  V.  Baltimore,  etc.,  R.  R.  Co., 
52  Md.  242 ;  Hodges  v.  Baltimore  Pass. 
R.  R.  Co.,  58  Md.  603;  Briggs  v.  Lewis- 
ton  &  Auburn  R.  R.  Co.,  79  Me.  363; 
Atty.  Gen.  v.  Met.  R.  R.  Co.,  125 
Mass.  515  ;  Hobart  v.  Milwaukee  City 
R.  R.  Co.,  27  Wis.  194;  9  Am.  St.  Rep. 
461,  with  note;  Randall  v.  Jacksonville 
St.  R.  R.  Co.,  19  Fla.  409 ;  Grand  Rapids 
&  I.  R.  Co.  V.  Heisel,  38  Mich.  62; 
East  End  R.  R.  Co.  v.  Doyle,  88  Tenn. 
747;  13  S.  W.  R.  936;  N.  R.  R.  Co.  v. 
Garside,  10  Kan.  552  ;  O.  O.  C.  &  C.  G. 
R.  R.  Co.  v.  Larson,  40  Kan.  301 ;  Hiller 
V.  A.  T.  &  S.  F.  R.  R.  Co.,  28  Kan.  635  ; 
Wichita  &  C.  R.  Co.  v.  Smith,  45  Kan. 
264;  25  Pac.  Rep.  623 ;  Railway  Co.  v. 
Cuykendahl,  42  Kan.  234,  and  other 
Kansas  cases  there  cited.  In  Kansas, 
however,  it  is  held  that  a  steam  rail- 
road is  not  an  additional  burden,  and 
that  the  landowner  cannot  recover 
compensation  unless  there  has  been  a 
practical  obstruction  of  the  street  and 
he  is  virtually  deprived  of  access  to 
his  land.  The  fee  of  the  land  in  the 
streets  is  in  the  public.  The  same  is 
held  in  Missouri.  Porter  v.  R.  R.  Co., 
33  Mo.  128;  Lackland  v.  R.  R.  Co.,  34 
Mo.   259;   Tate  v.  R.   R.  Co.,  64  Mo. 


§M 


IN  STREETS  AND   HIGHWAYS. 


97 


purpose  for  which  streets  are  established,  and,  consequently  that  for 
any  damage  resulting  from  such  use  to  the  abutting  owner  he  can 
recover  no  compensation,  whether  the  fee  is  in  the  public  or  not.'" 
Mr.  Lewis,  however,  goes  on  to  say  that  in  his  own  opinion, 
although  the  difference  between  the  ordinary  horse  railway  and 
the  ordinary  steam  railway  is  obvious,  yet  the  difference  is  only 
one  of  degree.  The  essential  characteristic  of  both  roads  is  that 
an  exclusive  franchise  is  granted  in  the  soil  of  the  street,  and  that 
if  the  principle  of  the  horse  railroad  cases  is  sound,  then  a  street 
may  be  so  filled  with  tracks  as  practically  to  exclude  all  other 
travel  and  traffic  from  the  streets.'  The  law,  however,  is  settled 
by  the  great  weight  of  authority  that  the  street  railway  is  not  in 
itself  an  additional  burden,  and  the  proviso  is  that  it  shall  leave 
the  landowner  free  right  of  use  of  and  access  to  his  land. 


150;  Randle  v.  R.  R.  Co.,  65  Mo. 
325;  R.  R.  Co.  V.  St.  Louis,  66  Mo. 
228. 

See  also  Angell  on  Highways,  3d  ed., 
^gi-qie;  2  Dill.  Mun.  Corp.,  4th  ed., 
§722  and  note;  Lewis  on  Em.  Dom., 
§  124  and  note  ;  Mills  on  Em. 
Dom.,  §  205  ;  Elliott  on  Streets, 
pp.  530-532  ;  Lewis'  Note  to 
Taggart  v.  Newport  St.  R.  R.  Co.,  i 
Lewis  Ann.  Amer.  R.  R.  &  Corp. 
Rep  55.  See,  however,  note  on  page 
57.  For  references  to  many  cases  on 
the  use  of  the  streets  for  railroad  pur- 
poses, see  note  to  Stanley  v.  Daven- 
port, 37  Am.  Rep.  224,  and 
Theobald  v.  Louisville  R.  R.  Co., 
14  Am.  St.  Rep.  569  ;  and 
also  note  to  Vose  v.  Newport  St.  R.  R. 
Co.,  46  Am.  &  Eng.  R.  R.  Cas.  91.  But 
if  a  street  railway  is  laid  along  the 
margin  of  a  sidewalk  so  as  to  dis- 
turb the  grade,  and  so  as  to  be  in  fact  an 
obstruction  to  the  convenient  access 
to  the  complainant's  house,  compensa- 
tion must  be  paid.  Street  Railway  v. 
Cumminsville,  14  Ohio  St.  524;  Rail- 
way Co.  V.  Lawrence,  38  Ohio  St.  41  ; 
Campbell  v.  Met.  R.  R.  Co.,  82  Ga. 
320;  9  S.  E.  Rep.  1078;  Wichita  &  C. 
R.  Co.  v.  Smith,  45  Kant  264 ;  25  Pac. 
623,  and  Kansas  cases  cited  ;  Lackland 
V.  R.  R.  Co.,  34  Mo.  259 ;  Grand  Rapids 
&  I.  R.  Co.  v.  Heisel,  38  Mich.  62 ; 
E.  W.— 7 


Nichols  V.  Ann  Arbor  &  Y.  St.  R.  R. 
Co.,  87  Mich.  361. 

In  the  following  cases  it  has  been 
held  that  an  ordinary  horse  railroad  is 
an  additional  burden  upon  land  taken 
for  streets,  and  that  the  owner  is  en- 
titled to  compensation.  Craig  v.  Roch- 
ester City  &  B.  R.  R.  Co.,  39  N.  Y. 
404.  (In  this  case  unlike  the  Kerr 
case,  supra,  the  fee  was  in  the  abutter.) 
Theobald  v.  Louisville,  etc.,  R.R.  Co., 
66  Miss.  279;  14  Am.  State  Rep.  564, 
(with  note)  ;  Indianapolis  B.  & 
W.  R.  R.  Co.  v.  Hartley,  67 
111.  439.  Earlier  cases  in  Illinois 
held  otherwise  where  the  fee  was  in 
the  public.  The  distinction  is  main- 
tained in  this  case.  The  case  was  ap- 
proved and  followed  in  Barnett  v.  Board 
of  Trade  Teleg.  Co.,  107  111.  507.  See, 
however,  Wiggins  v.  East  St.  Louis 
Ferry  Co.,  107  111.  450.  The  same  dis- 
tinction is  made  in  Tennessee,  Iron 
Mountain  R.  Co.  v.  Bingham,  87 
Tenn.  522;  11  S.  W.  Rep.  705  ;  East  End 
R.  R.  Co.  V.  Doyle,  88  Tenn.  747;  13 
S.  W.  Rep.  936.  See,  however,  a 
strong  opinion  that  the  question  of 
who  owns  the  fee  is  of  little  conse- 
quence in  McQuaid  v.  Portland  &  V. 
R.  R.  Co.,  18  Oregon  237 ;  22  Pac.  Rep. 
899;  I  Am.  R.  R.  Corp.  Rep.  34. 

'  Lewis'  Em.  Dom.,  §  124. 

*  See  also  the  dissenting  opinion  of 


98 


ELECTRIC  WIRES 


[§9. 


Judge  Cooley,  in  his  work  on  Constitutional  Limitations 
(§  688),  says :  "  When  land  is  dedicated  for  a  street  it  is  unquestion- 
ably appropriated  for  all  the  ordinary  purposes  of  a  street,  not 
merely  for  the  purposes  for  which  such  streets  were  formerly 
applied,  but  those  demanded  by  new  improvements  and  new 
wants.  Among  these  purposes  is  the  use  of  heavy  carriages 
which  run  upon  a  grooved  track;  and  the  appropriation  of  impor- 
tant streets  in  large  cities  for  their  use  is  not  only  a  frequent 
necessity  which  must  be  supposed  to  have  been  contemplated, 
but  it  is  almost  as  much  a  matter  of  course  as  the  grading  and 
paving." 

Mr.  Angell,  Judge  Dillon  and  Mr.  Mills  reach  the  same  con- 
clusion.' 

§  8.  Steam  Railroads  are  Now  Generally  Held  Not  to  be  Within 
the  Proper  Uses  of  the  Street. — It  is  equally  well  settled  that  the 
ordinary  steam  railroad,  as  now  conducted,  is  not  within  the 
purposes  for  which  a  street  is  dedicated,  and  does  impose  an 
additional  burden  upon  the  abutting  owner.' 

§  9.  The  Reasons  That  are  Given  For  the  Distinction.— The  same 
cases  which  allow  the  horse  railroad  to  be  within  the  proper  uses 


Earl,  J.,  in  Story  v.  N.  Y.  Kiev.  R.  R. 
Co.,  90  IS.  Y.  179-189. 

1  Mills  on  .Em.  Dom.,  ^  205;  2  Dill. 
Mun.  Corp.,  §  722;  Angell  on  High- 
ways, §  91-91  c. 

2  With  respect  to  a  steam  railway  we 
may  refer  to  Lewis  on  Em.  Dom.,  § 
115  and  note,  where  the  cases  are  col- 
lected and  arranged  by  states  with  ex- 
planations. See  also  Springfield  v. 
Conn.  River  R.  R.  Co.,  4  Cush.  63;  Starr 
V.  Camden  &  Atl.  R.  R.  Co.,  24  N.  J. 
L.  592 ;  Hinchman  v.  Paterson  Horse 
R.  R.  Co.,  17  N.  J.  Eq.  75;  Jersey  City 
&  Bergen  R.  R.  Co.  v.  Jersey  City  & 
Hoboken  R.  R.  Co.,  20  N.  J.  Eq.  61  ; 
Citizens'  Coach  Co.  v.  Camden  Coach 
Co.,  33  N.  J.  Eq.  267;  Halsey  v.  Rapid 
Transit  St.  Ry.  Co.,  47  N.  J.  Eq.  380 ;  21 
Atl.  Rep.  859;  Van  Home  v.  Newark 
Pass.  R.  R.  Co.,  21  Atl.  Rep.  1034 ;  48  N. 
J.  Eq.  — ;  Fla.  Southern  R.  R.  Co.  v. 
Brown,  23  Fla.  104;  Gray  v.  St.  Paul  & 
Pac.  R.  R.  Co.,  13  Minn.  315;  Reichert 
V.  St.  Louis,  etc.,  R.  Co.,  51  Ark.  491 ; 
II  So.  W.  Rep.  696;  5  L.  R.  Ann.  183, 


with  note,  citing  many  cases ;  38  Am. 
&  Eng.  R.  R.  Cas.  453;  D.  &  R.  G.  R. 
Co.  V,  Bourne,  11  Colo.  59;  Weyl  v. 
R.  R.  Co.,  69  Cal.  203;  10  Pac.  Rep. 
510;  Ruttles  V.  Covington,  Ky.  Ct. 
of  App.,  January  13,  1889,  10  S.  W. 
Rep.  644;  Daly  v.  Georgia,  etc., 
R.  R.  Co.,  80  Ga.  793 ;  12  Am.  St.  Rep. 
286,  and  note;  2  Dill.  Mun.  Corp.,  4th 
ed.,  §§  701,  702,  703,  704,  722,  723,  725, 
and  cases  cited;  Lewis  on  Em.  Dom.,  § 
636;  The  People  v.  Kerr,  27  N.  Y.  188 
( 1S63) ;  Craig  v.  Rochester  City  &  B.  R. 
R.  Co.,  39  N.  Y.  404  (1868) ;  Kellinger 
V.  Forty-second,  etc.,  R.  R.  Co.,  50  N. 
Y.  206;  Story  v.  N.  Y.  Elev.  R.  R.  Co., 
90  N.  Y.  122  ;  Lahr  v.  Met.  Elev.  R.  R. 
Co.,  104  N.  Y.  268;  Redfield  on  Rail- 
ways, 5th  ed.,  314,  ei  seq.,  and  notes. 

See  also  Adams  v.  Chicago  B.  &  N. 
R.Co.  (18SS),  39  Minn.  286;  39  N.  W. 
Rep.  629 ;  I  L.  R.  A.  493,  with  notes. 
The  court  held  that  an  abutting  owner 
has  an  easement  in  the  street,  inde- 
pendent of  the  fee,  and  that  depriving 
him  of  this,  to  any  extent,  is  a  taking  of 


§9-1 


IN  STREETS  AND   HIGHWAYS. 


99 


private  property.  A  steam  railroad 
was  held  not  to  be  a  proper  use  of  a 
street,  and  tlie  landowner  was  awarded 
damages ;  but  these  were  confined  to 
the  operation  of  the  road  in  front  of 
the  plaintiflf's  land,  so  as  not  to  include 
damages  common  to  the  public. 

This  decision  was  affirmed  in  Lamm 
V.  Chicago  St.  Paul  &  M.  R.  R.  Co.,  45 
Minn.  71 ;  10  L.  R.  A.  268  (with  note). 

It  was  held  that  the  easement  goes 
beyond  the  middle  line  of  the  street. 
Damages  from  noise  and  jarring  were 
excluded,  because  these  do  not  affect 
the  easement. 

The  appropriation  of  a  street  for  a 
railroad  held  to  be  a  new  burden.  Cox 
V.  L.  N.  A.  &  C.  R.  R.  Co.,  48  Ind.  178 
(1874);  compare  Delhi  v.  Evans,  36 
Ind.  90. 

In  Iowa  it  is  held  that  the  legisla- 
ture may  authorize  the  use  of  streets 
for  railroads  without  compensation  to 
the  abutting  owners.  Clinton  v.  Ce- 
dar Rapids  &  M.  R.  R.  Co.,  24  Iowa 
455.  The  statutes  providing  for  com- 
pensation do  not  apply  to  street  rail- 
ways. The  city  council  may  author- 
ize these  without  compensation.  Sear 
V.  Marshalltown  St.  R.  R.  Co.,  65  Iowa 
742.  But  compensation  must  be  made 
for  actual  damage  done  by  the  con- 
struction and  operation  of  the  road  in 
the  street.  Stanley  v.  Davenport,  54 
Iowa  463  (steam  dummy);  Drady  v. 
Des  Moines  &  Ft.  O.  R.  Co.,  57  Iowa 
393;  Stange  v.  Dubuque,  62  Iowa  303; 
Rinard  v.  Burlington  &  W.  R.  Co.,  66 
Iowa  440;  Wilson  v.  Des  Moines,  O.  & 
S.  R.  Co.,  67  Iowa  569;  McLean  v. 
Chicago,  I.  &  D.  R.  Co.,  67  Iowa  568. 
There  are  cases  in  which  it  is  held 
that  the  operation  of  a  steam  railroad, 
if  authorized  by  law  and  municipal 
consent  does  not  entitle  the  landowner 
to  compensation,  especially  if  he 
does  not  own  the  fee, unless  it  practi- 
cally obstructs  the  street  and  deprives 
him  of  his  right  of  access.  This  is  the 
settled  rule  in  Kansas.  Wichita  &  C.  R. 
R.Co.v.  Smith,  45  Kan.  264 ;  25  Pac.Rep. 
623;    Railway   Co.  v.    Cuykendall,   42 


Kan.  234;  21  Pac.  Rep.  1051,  and  cases 
cited.  Also  in  Missouri,  Lackland  v 
R.  R.  Co.,  34  Mo.  259;  R.  R.  Co.  v.  St. 
Louis,  66  Mo.  228;  Julia  Building 
Assn.  V.  Bell  Telephone  Co.,  88  Mo. 
258-271,  and  cases  cited.  In  Cosby 
v.  Owenboro,  10  Bush  (Ky.)  288,  it 
was  held  that  building  an  embankment 
in  the  middle  of  the  street  for  a  rail- 
road, leaving  a  passageway  from  six 
to  thirteen  feet  wide  for  vehicles,  is 
not  such  an  appropriation  of  the  street 
as  to  give  landowners  a  right  of  action. 
See  Costigan  v.  Penna.  R.  R.  Co.,  N. 
J.  Sup.  Ct.,  February,  1892,  15  N.  J.  L. 
J.  90.  See  also  in  Arbenz  v.  Wheeling  & 
Harrisburg  R.  R.  Co.,  33W.  Va.  i  ;  5  L. 
R.  A.  371,  where  it  was  held  that  an 
abutting  owner  was  not  entitled  to  an 
injunction  against  excavating  a  street 
for  a  railroad  duly  authorized  so  long 
as  there  was  sufficient  space  on  either 
side  for  the  proper  purposes  of  a 
street.  See  note  to  this  case,  5  L.  R. 
A.  371.  See  also  Fobes  v.  Watertown, 
etc.,  R.  R.  Co.,  121  N.  Y.  505,  where  it 
was  said  that  an  abutter  who  does  not 
own  the  fee  has  no  right  of  action 
against  a  steam  railroad  company  law- 
fully occupying  a  public  street  in  such 
a  manner  as  not  to  change  the  grade 
nor  interfere  with  public  travel,  ap- 
proving Drake  V.  Hudson  River  R.  R. 
Co.,  7  Barb.  508. 

In  West  Virginia  it  has  been  re- 
cently held  that  the  owner  of  lands 
along  a  street  on  which  a  railroad  was 
to  be  laid  cannot  obtain  an  injunction 
unless  the  injury  will  be  such  as  en- 
tirely to  destroy  the  value  of  the  prop- 
erty so  as  to  constitute  a  taking.  Yates 
v.Town  of  West  Grafton,  24  W.Va.  783; 
12  S.E.  Rep.  1075  (1891).  The  court  re- 
lied on  the  language  of  the  now  vener- 
able Chancellor  Williamson  in  Morris 
&  Essex  R.  R.Co.  v.  Newark,  10  N.  J. 
Eq.  (2  Stock.)  352,  decided  in  1855,  but 
it  had  not  then  been  established  by  ex- 
perience that  steam  railroads  were  in- 
consistent with  other  uses  of  the  street 
within  the  lines  of  the  railroad.  See 
§  10,  infra. 


lOO 


ELECTRIC   WIRES  [§  9- 


of  a  street  declare  that  the  steam  railroad  is  not.*  The  reason 
for  the  distinction  is  not  the  motive  power,  but  the  mode  of 
using  the  streets,  the  purpose  for  which  the  cars  are  used,  and 
the  effect  of  using  them  upon  the  other  and  ordinary  uses  of  the 
streets,  and  upon  the  use  of  the  adjoining  land.  Chancellor 
Green,  in  HincJiman  v.  Patcrson  Horse  R.  R.  Co.,"  said  the  use  of 
land  for  a  steam  railway,  and  the  use  of  it  for  an  ordinary  high- 
way were  almost  wholly  inconsistent  with  each  other,  but  with 
respect  to  the  street  railroads  used  as  a  part  of  the  highway  and 
in  connection  with  it,  he  said  the  use  of  the  land  was  almost 
identical  with  that  of  the  ordinary  highway,  and  went  on  to 
show  that  the  use  of  the  railroad  could  not  interfere  with  the 
landowner  in  the  use  of  his  property  any  more  than  an  ordinary 
highway. 

Chancellor  Zabriskie,  in  Jersey  City  and  Bergen  R.  Co.  v.  Jer- 
sey City  and  Hoboken  Horse  R.  Co.^  referred  to  this  and  many 
other  cases  distinguishing  street  railroads  from  the  ordinary  rail- 
roads operated  by  steam.  He  said  that  steam  railroads  did  not 
afford  access  to  the  land  along  which  they  passed,  and  that  the 
landowner  whose  land  was  taken  acquired  none  of  the  benefits  of  a 
public  highway  to  his  land  from  the  use  of  the  street  for  such  a 
railroad,  but  that  in  the  case  of  street  railroads  it  was  different. 
"In  general,"  he  said,  "the  cars  will  stop  in  front  of  every  door, 

In  Colorado  where,  under  the  con-  For  cases  on  horse  and  steam  rail- 
stitution  and  statutes,  it  is  contem-  ways  in  streets,  see  notes  14  Am.  St. 
plated  that  the  streets  of  Denver  may  Rep.  569,  and  11  Am.  St.  Rep.  682;  36 
be  used  for  steam  railroads,  and  that  Am.  and  Eng.  R.  Cas.,  n.  9;  38  ibid. 
permission  may  be  granted  by  munici-  452,  n.,  468,  n. ;  4  L.  R.  A.  623,  n. ;  32 
pal  authority,  the  abutting  owner  is  Am.  &  Eng.  R.  Cas.  351,  n.  For  an 
still  entitled  to  compensation  for  this  article  on  the  right  to  construct  and  op- 
extraordinary  and  unusual  use  of  the  erate  an  elevated  steam  railroad  on  the 
streets  as  compared  with  the  use  for  other  side  of  the  street,  see  27  Am.  Law 
local  convenience  and  travel.  Denver  Reg.,  N.  S.  i  ;  and  see  also  Penna.  R.  R. 
&  S.  F.  R.  Co.  V.  Domke,  11  Colo.  247.  Co.  v.  Lippincott,  116  Pa.  St.  472. 
See  also  Gilbert  v.  Greeley,  S.  L.  &  P.  The  construction  of  a  tollgate-keep- 
R.  R.  Co.,  13  Colo.  501.  er's  house  within  the    lines  of  a  high- 

1  Hinchman  v.  Paterson  Horse  R.  R.  way,  without  the  consent  of  the  owner 
Co.,  17  N.  J.  Eq.  75  ;  Jersey  City  &  Ber-  of  the  soil,  is  the  imposition  of  an  ad- 
gen  R.  Co.  V.  Jersey  City  &  Hoboken  ditional  servitude,  although  the  legis- 
HorseR.Co.,2oN.J.Eq.6i;  2Dill.Mun.  lature  had  authorized  the  turnpike 
Corp.,  §§  725  (576),  722  (573) ;  Hobart  company  to  appropriate  the  highway. 
v.  Milwaukee  City  R.  R.  Co.,  27  Wis.  Perkins  v.  Moorestown  &  C.  Turnp. 
194  (1870)  ;s.  c,  9  Am.  Rep.  461  ;  Ford  Co.,  14  N.  J.  L.  J.  197;  22  Atl.  Rep. 
V.  Chicago  &  N.  W.  R.  R.  Co.,  14  Wis.  iSo  (Chancery,  N.  J.  1891). 
616;  Springfield  v.  Conn.  River  R.  R.  ^  j^  n.  J.  Eq.  75. 
Co.,  4  Cush.  63.  '  20  N.  J.  Eq.  61. 


I  lO.]  IN   STREETS   AND    HIGHWAYS.  10 1 

and  convey  persons  from  any  one  point  on  their  line  to  any  other 
to  which  they  may  desire  to  go,  and  the  great  use  or  advantage 
of  them  is  to  those  whose  property  is  taken  for  the  street  and 
whose  lands  adjoin  it.  .  .  .  They  are  but  means  of  using 
the  public  streets  to  a  greater  advantage  for  the  very  purposes 
for  which  they  were  laid  out,  free  and  quick  transit  from  one 
part  to  another  ;  they  are  the  best  and  cheapest  mode  yet  devised, 
and  they  do  not  hinder  the  use  of  the  rest  of  the  street  for  pub- 
lic travel,  and  hardly,  and  in  a  very  small  degree,  obstruct  travel 
on  the  part  occupied  by  the  tracks,  except  the  few  inches  used 
for  the  iron  rails."  And  it  was  held  that  the  state,  or  those  to 
whom  it  has  delegated  the  authority,  has  the  right  to  set  apart 
a  certain  portion  of  the  street  for  a  street  railroad,  if  that  road 
is  to  accommodate  the  public  travel  for  which  the  street  was 
designed. 

It  is  worthy  of  note  that  before  it  was  learned  by  experience 
that  the  use  of  the  steam  railroad  in  the  streets  was  in  fact  ex- 
clusive, and  was  not  consistent  with  the  ordinary  uses  of  a  street, 
it  was  held  in  New  Jersey  that  even  this  was  only  a  new  mode  of 
travel  to  which  the  streets  might  be  devoted.  Chancellor  Wil- 
liamson, in  his  remarkable  judgment  in  Morris  and  Essex  R.  R. 
Co.  V.  Nczvark,'  in  1855,  said:  "  While  (the  land)  is  preserved  as 
a  common  public  highway,  the  use  of  it  does  not  belong  to  the 
owner  of  the  fee  any  more  than  to  any  other  individual  of  the 
community.  The  legislature,  therefore,  does  not,  by  permitting 
the  company  to  use  the  public  highway  in  common  with  the  pub- 
lic, take  away  from  the  landowner  anything  that  belongs  to  him. 
It  is  not  a  misappropriation  of  the  way.  It  is  used  in  addition 
to  the  ordinary  mode,  in  an  improved  piode  for  people  to  pass 
and  repass." 

It  was  only  when  it  was  found  that  the  steam  railroad  running 
through  a  town  was  not  a  mode  of  using  the  streets  for  travel 
within  the  city,  that  the  courts  held  that  it  was  not  a  use  for 
which  the  streets  had  been  dedicated,  and  that  although  the  right 
to  use  it  so  might  be  granted,  compensation  must  be  given  to  the 
landowner. 

§  10.  Diflference  of  Opinion  as  to  Dummy  Steam  Engines.— Horse 
railroads  having  been  held  to  be  within  the  uses  of  a  street,  and 
steam  railroads  not,  the  question  next  arose  whether  the  use  of 
steam  motors  on  street  railroads  imposed  a  new  burden,  and  this 
was  variously  decided  according  to  the  views  of  the  courts  upon 

1  2  Stock.  352. 


102 


ELECTRIC   WIRES  [§  10. 


the  effect  of  such  a  change  upon  the  use  of  the  streets.  In  Iowa, 
for  example,"  it  was  held  that  steam  motors  authorized  by  a  city 
to  be  used  on  the  streets  were  a  nuisance,  and  that  the  city  was 
liable  to  a  traveler  for  damages.  In  Minnesota,  on  the  other 
hand,  it  was  held'  that  the  running  of  cars  drawn  by  steam 
motors  inclosed  in  cabs  was  a  proper  use  of  the  streets  in  aid  of 
public  travel,  and  did  not  impose  a  new  servitude. 

The  same  thing  was  held  in  a  case  in  Maine,'  when  the  court 
said  :  "  The  motor  is  not  the  criterion  ;  it  is  rather  the  use  of 
the  street.     A  change  of  motor  is  not  a  change  of  use." 

In  Williams  v.  City  Electric  Railway  Co,,  in  the  U.  S.  Circuit 
court  for  the  district  of  Arkansas,"  it  was  held  that  a  railroad 
operated  in  a  city  by  steam  motors  was  a  street  railway,  within 
the  meaning  of  a  statute  giving  cities  power  to  provide  for  the 
operation  of  street  railways,  and  that  it  did  not  impose  a  new 
servitude.  The  court  said  :  "  The  distinction  attempted  to  be 
drawn  between  animal  and  mechanical  power  as  applied  to  street 
railroads  is  not  sound.  The  motor  is  not  the  criterion.  It  is 
the  use  of  the  street  and  the  mode  of  that  use ;  "  and  that  if  a 
railroad,  whether  operated  by  horse  power  or  mechanical  power, 
is  in  fact  so  operated  as  to  be  a  nuisance,  the  landowner  has  his 
remedy. 

In  Tennessee  it  has  recently  been  held,  that  the  use  of  a  steam 
motor  drawing  cars  and  running  along  a  city  street  and  five  miles 
out  into  the  country  was,  in  fact,  a  new  servitude.  The  court 
said  that  it  was  a  question  of  degree,  and  depended  on  the  man- 
ner in  which  the  streets  were  used  ;  but  that  in  this  case  there 
was  noise  and  smoke,  the  trains  were  longer  and  heavier,  and  the 
speed  was  greater  than  in  the  case  of  horse  cars,  and  the  use  was 
practically  inconsistent  with  other  uses  of  the  highway.' 

In  a  recent  case  in  Oregon,"  relating  to  a  railroad  operated  by 
a  steam  dummy,  it  was  held    that    the  question,  whether   the 

1  Stanley  v.  Davenport,  54  Iowa  463;  «  McQiiaid  v.  Portland  &  V.R.R.Co., 
37  Am.  Rep.  216,  with  long  note.  iS  Oreg.  237;  22  Pac.  Rep.  899;  i  Am. 

2  Newell  V.  Minneapolis,  Lyndale  &  R.  R.  Corp.  Rep.  34.  See  also  in  re- 
M.  R.  R.  Co.,  35  Minn.  112;  59  Am.  gard  to  steam  dummies,  R.  R.  Co.  v. 
Rep.  303.  Bingham,  87  Tenn.  522 ;  11  "S.  W.  Rep. 

3  Briggs  V.  Lev.-iston  &  A.  Horse  R.  705  ;  Smith  v.  R.  R.  Co.,  87  Tenn.  626; 
R,  Co.,  79  Me.  363  (1887).  II   S.  W.  Rep.  709.     Plaintiff  did  not 

*4i  Fed.  Rep.  556,  March  26,1890.  own  the  fee,  and  it  v.as  held  that  his 

^  East  End  R.  R.  Co.  v.  Doyle,   13  S.  damages   were    confined   to    injury   to 

W.  Rep.  936;  SS  Tenn.  747;  17  Am.  St.  easement   of   access,  etc.     Hussner  v. 

Rep.  933  (1S90).  Brooklyn  City  R.  Co.,  114  N.  Y.  433; 


§  12.]  IN  STREETS  AND   HIGHWAYS.  IO3 

owner  of  the  abutting  land  was  entitled  to  damages  for  the  opera- 
tion of  a  railway  in  the  streets,  depended  on  whether  his  right 
of  access,  and  other  rights  appurtenant  to  his  property,  were 
interfered  with,  and  that  this  was  a  question  of  fact  for  the  jury. 
The  court  said  the  question  who  owns  the  fee  was  of  little  con- 
sequence, because  the  fee  could  not  be  in  any  real  sense  in  the 
public,  but  is  held  for  the  purposes  of  a  street,  and  if  the  fee  is 
in  the  individual,  he  holds  it  subject  to  the  public  use  of  the 
street. 

§  11.  In  a  still  later  case  in  Michigan '  it  was  held  that  a  rail- 
road operated  by  a  steam  dummy  running  along  a  country  road 
did  affect  the  rights  of  the  owner  of  the  adjoining  land,  not  be- 
cause of  the  kind  of  motor  used,  but  because  the  line  was  so 
constructed  with  cuts  and  fills  as  not  to  make  a  part  of  the  high- 
way. The  court  said  :  "A  street  railway  the  rails  of  which  are 
laid  to  conform  to  the  grade  and  surface  of  the  street,  and  which 
is  otherwise  so  constructed  that  the  public  are  not  excluded  from 
the  use  of  any  part  of  the  street  as  a  public  way,  carrying  pas- 
sengers, stopping  at  street  crossings  to  receive  and  discharge 
them,  is  a  street  railway,  whether  it  be  operated  by  horses  or 
electric  power  or  by  steam  motor  such  as  shown  to  be  used  by 
the  defendant  in  this  case."  An  injunction,  however,  was  granted 
against  the  maintenance  of  the  road  in  question  until  compensa- 
tion should  be  made. 

§  12.  Use  of  the  Cable  Railway. — The  use  of  the  cable  as  the  mo- 
tive power  involves  the  digging  up  of  the  soil,  and  placing  a  per- 
manent structure  along  the  middle  of  the  street,  and  so  there 
may  perhaps  be  some  likeness  in  this  respect  to  the  planting  of 
poles  along  the  street.  The  slot  or  groove  for  the  cable  is  not 
an  obstruction,  but  it  is  not  quite  safe  for  horses  to  travel  upon, 
and  it  does,  therefore,  interfere  with  the  use  of  the  tracks  for 
one-horse  vehicles,  and  it  certainly  does  take  possession  of  a 
greater  portion  of  the  land  within  the  street  than  that  which  is 
occupied  by  the  poles  of  the  electric  railway. 

The  question  of  the  occupation  of  the  soil  of  the  street  has  not 
been  mentioned  in  the  cases,  but  the  cable  has  been  considered 
rather  as  a  change  of  motive  power,  and  with  reference  to  the 
statute  under  which  the  franchise  was  granted.     In  a  case  in  the 

31  N.  E.  Rep.  1002,  an  action  for  dam-  Eng.   R.  Cas.    372;    5    L.   R.   A.  371, 

ages  from  noise  and  smoke  in  using  a  note. 

steam  motor.     For  a  discussion  of  the  '  Nichols  v.  Ann  Arbor  &  Ypsilanti 

question    of   nuisance,   see   36   Am.  &  R.  R.  Co.,  87  Mich.  361  (1891). 


104  ELECTRIC  WIRES  [§  13. 

New  York  court  of  appeals,  in  which  one  of  the  conditions  of  the 
grant  was  that  no  steam  should  be  used,  the  court  held  that  the 
franchise  did  not  include  the  right  to  excavate  and  use  the 
streets  for  a  cable.*  In  a  later  case,  in  the  same  court,  it  was 
held,  that  a  change  from  horse  power  to  the  cable  may  be  made 
without  the  consent  of  the  owners  of  the  land.*  The  change  was 
made  before  the  amendment  to  the  constitution  of  New  York, 
requiring  the  consent  of  the  owners  of  one-half  the  property 
along  the  line  to  the  construction  and  operation  of  a  street  rail- 
way, and  the  court  distinguished  the  decision  in  People  v.  Gilroy, 
relating  to  an  electric  road,  in  which  this  point  was  not  taken.' 

In  a  local  court  in  Ohio,*  it  has  recently  been  held,  that  a 
street  railway  operated  by  cable  is  not  to  be  classed  with  steam 
railways,  and  is  not  a  new  burden  entitling  the  owner  of  the  land 
to  compensation. 

And  again,  in  the  United  States  Circuit  court  for  the  northern 
district  of  Illinois,  it  was  held,  that  a  landowner  who  did  not  own 
the  fee,  was  not  entitled  to  an  injunction  against  the  use  of  a 
street  for  a  cable  railway,  without  his  consent,  in  the  absence  of 
proof  of  some  special  injury  to  himself,  beyond  what  he  might 
suffer  in  common  with  the  public  at  large. ^ 

§  13.  Poles  and  Wires  for  the  Electric  Railway — Do  They  Affect 
the  Property  Rights  of  the  Abutting  Owner? — The  use  of  the  over- 
head system  of  electric  wires  presents  some  different  questions 
from  the  use  of  steam  motors  or  cables.  It  involves  some  obstruc- 
tion of  the  streets  by  the  poles  and  wires,  and  is  said  to  inter- 
fere with  the  working  of  the  telephone.  The  poles  must  be  set 
up  either  along  the  sidewalk  or  in  the  middle  of  the  street,  and 
the  wires  must  be  strung  along,  and  in  some  places  across,  the 
street.  It  is  strenuously  objected  that  the  placing  of  the  poles 
in  the  soil  of  the  street  is  a  taking  of  private  property,  and  that 
even  if  the  fee  of  the  street  is  in  the  city,  it  is  an  interference  with 
the  easement  of  the  abutting  owner  and  his  right  of  access.  It 
must  be  borne  in  mind  that  the  question  is  not  whether  the  poles 
interfere  with  public  travel,  and  thus  constitute  a  public  nuisance. 

^  People  V.  Newton,   112   N.   Y.  396  ''  Lorie  v.  North  Chicago  City  R.  R. 

(1S89) ;  3  L.  R.  A.  174.  Co.,  32  Fed.  Rep.  270.  See  also  with  ref- 

'■^  /«  re  Third  Ave.  R.  R.  Co.,  121  N.  erence  to  the  cable  as  a  motive  power, 

Y.  336  (1890);  24  N.  E.  Rep.  951..  Indianapolis  Cable  St.  R.  R.  Co.v.  Cit- 

=•9  N.  Y.  Supp.  686,  833  (1890).  izensSt  R.R.Co.,  i27lnd.369;  8L.R. 

*  Harrison  v.  Mt.  Auburn   Cable  R.  A.  539;  24  N.  E.  Rep.  1054;  43  Am.  & 

R.  Co.,  17  Week.  Bull.  265  (Hamilton  Eng.  R.  R.  Cases  234;   Des  Moines  St. 

Com.  Pleas,  Ohio).  R.  R.  Co.  v.  Des  Moines  Broad  Gauge 


§  14-]  IN   STREETS   AND    HIGHWAYS.  IO5 

This  is  a  question  to  be  decided  by  the  legislature.  If  the  legis- 
lature decides  that  the  interests  of  public  travel  are  subserved  by- 
having  the  poles  in  the  streets,  then  the  public  have  no  ground 
for  complaint.  The  only  question  now  is  whether  the  private 
rights  of  the  abutter  are  affected ;  whether  it  is  a  private  nuisance 
to  him,  and  whether  his  lands  are  taken  or  his  rights  on  the  street 
infringed.  In  deciding  this  question,  it  is  to  be  remembered  that 
the  land  used  is  a  public  street,  and  that  whether  the  fee  is  in  the 
abutting  owner  or  in  the  public,  the  whole  beneficial  use  of  the 
land  is  in  the  public  for  the  purposes  of  a  street.  For  those  pur- 
poses it  belongs  wholly  to  the  public  ;  and  so  long  as  it  is  used 
for  those  purposes,  it  does  not  belong  to  the  individual  at  all.' 

§  14.  Comparison  With  the  Elevated  Railroad  Cases — Poles  Affect 
Not  the  Land,  but  only  Rights  of  Adjacency,  Unless  the  Use  is  a  Perver- 
sion of  the  Use  of  the  Street. — The  abutter  retains  only  his  ease- 
ments of  light  and  air  and  access,  and  these  are  property 
rights;  and  for  the  loss  of  these,  it  has  been  recently  decided  in 
the  Nev/  York  Elevated  Railroad  cases,  he  is  entitled  to  com- 
pensation.'' It  was  held,  in  these  cases,  that  the  erection  of 
a  heavy  iron  railway  upon  posts  in  the  streets  was  not  a 
taking  of  the  land,  but  that  it  did  in  fact  affect  the  use  of  his 
land  in  connection  with  the  street,  and  was  an  interference  with 
the  right  of  access  and  of  light  and  air,  which  entitled  the  adja- 
cent owner  to  compensation.^     It  would  seem  to  follow  from  this 

R.  R.  Co.,  74  Iowa  585;  35  N.  W.  602;  an  article  on  the  Elevated  Road  Liti- 

Teachout  v.  Des    Moines  B.  G.  R.  R.  gation,    by     Edward    A.    Hibbard,    4 

Co.,  75  Iowa  722  ;  38  N.  W.  145.  Harv.  Law  Review  70. 

^  Hoboken    Land   &    Impr,    Co.    v.  "  Story  v.  N.  Y.  Elev.   R.  R.  Co.,  90 

Hoboken,   36   N.   J.    L.   540,   551,   per  N.  Y.  122  ;  Lahr  v.  Met.  Elev.  R.R.  Co., 

Depue,  J.  104  N.   Y.   268;     Pond   v.    Met.   Elev. 

2  Story  V.  N.  Y.  Elev.  R.  R.  Co.,  90  R.  R.  Co.,    112   N.    Y.  186;    Porter  v. 

N.  Y.  122;   Lahr  v.  Met.   Elev.  R.  R.  Met.  Elev.  R.  R.  Co.,  120  N.  Y.  284; 

Co.,   104    N.    Y.   268;    Pond   v.   Met.  Abendroth  v.  Manhattan  R.  R.  Co.,  122 

Elev.  R.R.  Co.,  112  N,  Y.  186;   Porter  N.  Y.  i. 

V.  Met.  Elev.  R.  R.  Co.,  120  N.  Y.  2S4;  In    Fobes  v.  Rome  W.  &  O.  R.  R. 

Fobes    v.  Rome   &    Watertown    Og-  Co.,  121   N.  Y.  505,  it  was  held  by  the 

densburg  R.  R.    Co.,   121   N.  Y.  505;  court   of   appeals     that    the    abutting 

Hochalter  v.  Manhattan  R.  R.  Co.,  31  owner,  not  owning  the  fee  in  the  street, 

N.  Y.St.  Rep.  112;   Giordano  v.  Man-  had   no   right  to  compensation  for  the 

hattan  R.  R.  Co.,  31  N.  Y.  St.  Rep.  134;  use   of  the  street  by  a  steam  railroad 

Abendroth  v.  Manhattan  R.  R.  Co.,  122  duly  authorized  ;  but  the  same  court,  in 

N.  Y.  i;  Haynes  v.  Thomas,  7  Ind.  38 ;  Abendroth  v.  Met.  Elev.  R.  R.  Co.,  122 

Crawford    v.    Delaware,   7     Ohio    St.  N.  Y.  1-17,  said   that  the  former  case 

459;    Stack   v.    East  St.  Louis,  85  111.  did  not  decide  that  an  abutting  owner 

377;  and  many  other  cases.     See  also  has  not  vested  rights  to  light  air  and 


I06  ELECTRIC  WIRES  [§  l6. 

that  if  the  use  of  cars  for  local  travel,  propelled  by  electricity,  is 
a  proper  use  of  the  street  as  such,  then  the  occupation  of  the  soil 
for  poles  reasonably  necessary  to  supply  the  electricity  is  not  a 
taking  of  land  belonging  to  the  abutting  owner,  and  that  it  does 
not  interfere  with  his  rights  in  the  street,  unless  it  appears  that  it 
affects  his  beneficial  use  of  it  as  a  street  in  connection  with  his 
land,  and  that  it  does  in  fact  affect  his  access  to  his  premises,  or 
obstruct  the  light  or  air. 

It  becomes,  therefore,  a  question  of  fact  whether  the  electric 
railroad  is  a  mode  of  using  the  street  for  the  purposes  for  which 
it  was  designed,  and  whether  the  poles  and  wires  really  and  sub- 
stantially affect  the  use  of  the  adjacent  land  and  interfere  with  the 
right  of  access  and  light  and  air. 

§  15.  There  is  no  Change  of  Use  in  Substituting  Electricity  for 
Horse  Power. — It  would  seem  to  be  very  clear  that  the  use  of 
electricity  instead  of  horses  to  propel  street  cars  used  for  the 
same  purposes  as  horse  cars  does  not  change  the  use  of  the 
streets.  The  cars  are  of  the  same  kind ;  they  are  used  in  the 
same  way  for  taking  people  from  door  to  door,  and  facilitating 
travel  in  and  about  the  city.  The  use  of  the  road  corresponds 
exactly  with  the  description  of  a  horse  railway  in  the  New  Jer- 
sey cases  cited  in  §  9,  as  distinguished  from  a  steam  railway, 
which  occupies  the  streets  for  another  purpose,  to  the  exclusion 
of  local  travel.' 

§  16.  Question  of  Interference  with  Use  of  Street  is  a  Question  of 
Fact. — The  question  whether  the  poles  and  wires  interfere  with 
the  use  of  the  street  as  such  in  connection  with  the  adjacent 
land  is  a  question  of  fact  to  be  determined  in  each  case,  but  it 
cannot  be  said  without  proof  that  the  poles  and  wires  as  ordina- 
rily arranged  would  have  that  effect.  The  most  serious  opposition 
is  made  to  those  placed  in  the  middle  of  the  street ;  but  however 
inconvenient  these  may  be  to  the  public,  it  is  clear  that  they  are  less 
open  to  objection  from  the  landowner  than  those  on  the  side- 
walk, in  which,  by  custom  at  least,  the  landowner  has  more 
privileges,  and  on  which  he  is  allowed  to  place  obstructions,  such 
as   awning  posts    and  hitching  posts,  for  his  own  convenience. 

access  in  a  public  street  which  are  in-  Trenton,    and  State,    Halsej,  pros.   v. 

cident  to  his  lot,  and  are  private  prop-  Rapid  Transit  St.  R}'.  Co.,  N.  J.  Sup, 

erty,  but  that  the  operation  of  a  steam  Ct.,    January,     1892;     15    N,    J.    Law 

railroad  on  the  grade  of  the  street  was  Journal   39   &   45,  where  the   electric 

not  an  invasion  of  his  rights.  railway  is  declared  not   to  answer  the 

^  See,  however.  State,  Green,  pros.  v.  description  of  the  horse  railway  given 


§  i;.]  IN   STREETS   AND    HIGHWAYS.  10/ 

The  land  itself  occupied  by  the  electric  poles  in  the  middle  of 
the  street  belongs  to  the  public  for  the  uses  of  the  street,  and  if 
the  pole  is  put  there  for  such  a  use,  nothing  belonging  to  the 
abutting  owner  is  actually  taken.  Such  seems  to  us  to  be  the 
conclusion  to  be  reached  upon  legal  principle,  and  such  is  the 
conclusion  of  the  judges  in  many  of  the  cases  which  have 
recently  been  decided  in  regard  to  electric  railways,  and  espe- 
cially that  of  Vice-Chancellor  Van  Fleet  in  Halsey  v.  Rapid  Tran- 
sit Street  Ry.  Co.  above  referred  to.' 

The  real  question  is  not  whether  the  poles  and  wires  trespass 
upon  what  may  be  technically  the  land  of  the  abutting  owner, 
but  whether  the  use  of  them  and  of  the  electric  cars  does,  in  fact, 
interfere  with  the  free  and  convenient  use  of  the  street  in  con- 
nection  with  the  land,  or  diminish  the  value  of  the  land  by 
changing  its  relation  to  the  street. 

The  landowner  has  no  absolute  veto  upon  the  planting  of  the 
poles  by  reason  of  his  technical  ownership  of  the  soil,  but  his 
right  to  compensation  will  depend  upon  whether  the  poles  are 
so  constructed  or  so  placed  as  to  affect  his  free  access  to  every 
part  of  his  property,  and  whether  the  cars  are  so  run  as  to 
be  inconsistent  with  a  free  and  safe  use  of  the  street  from  and  to 
his  land  for  other  street  uses.  It  may  depend  somewhat  on  the 
character  of  the  street,  the  purposes  for  which  it  is  used,  and 
that  which  gives  the  property  along  the  line  of  it  its  peculiar 
value. 

§  17.  Recent  Cases — Mt.  Adams  and  Eden  Park  Inclined  Railway 
Co.  V.  Winslow. — I  shall  now  refer  to  the  recent  cases.  Many  of 
them  are  decisions  of  local  and  inferior  courts,  but  some  of  these 
bear  evidences  of  careful  examination  of  the  principles  and  au- 
thorities, and  they  are  all  interesting  as  the  beginnings  of  the 
application  of  the  principles  to  new  conditions.^ 

One  of  the  earliest  cases  was  Mt.  Adams  and  Eden  Park  biclincd 
Railway  Co.  v.  Hozuard  Winslozu  et  al.,  in  the  court  of  common 
pleas  of  Hamilton  County,  Ohio,  in  the  year  1888.'  In  that  case 
it  appeared  that  poles  were  placed  along  the  margin  of  the  side- 
in  those  cases,  but  to  resemble  rather  ported,  and  some  others  are  not  pen- 
the  steam  railroad  in  its  obstruction  of  erally  accessible.  I  am  indebted  to 
the  street.  Mr.  John  S.  Wise,  counsel  for  the  Edi- 

^  Halsey  V.  Rapid  Transit  St.  Ry.  son  General  Electric  Company  in 
Co.,  47  N.  J.  Eq.  380 ;  20  Atl.  Rep.  New  York,  for  copies  of  the  cases  and 
859;  46  Am.  &  Eng.    R.   R.   Cas.   76     opinions. 

(1890),  sufra,  Chapt.  VIII,  §  14.  ^  20  Week.  Bull.  &  O.  L.  J.  420,  Nov. 

^  Several  of  these  cases  are  not  re-     17,  1888. 


I08  ELECTRIC   WIRES  [§  1 8. 

walk  about  one  hundred  feet  apart,  and  wires  were  stretched 
across  and  along  the  street  for  the  purpose  of  supplying  elec- 
tricity to  street  cars. 

An  injunction  was  granted  to  prevent  the  defendant,  a  land- 
owner, from  removing  the  poles.  Maxwell,  J.,  dissolved  the  in- 
junction and  issued  a  mandatory  order  to  remove  the  poles.  He 
referred  to  cases  in  Ohio,  establishing  the  doctrine  that  the  right 
of  the  adjoining  owner  to  ingress  and  egress,  and  light  and  air,  is 
just  as  much  his  property  as  the  ground  on  which  his  building 
stands,  and  cannot  be  taken  from  him  without  compensation,  and 
that  he  will  not  be  left  to  his  remedy  at  law.  He  criticised  Julia 
Building  Association  v.  Bell  TelepJione  Co.^  as  ignoring  this  doc- 
trine. He  said  it  was  not  enough  to  say  that  these  poles  were  in 
aid  of  public  travel,  and  that  every  vehicle  is  an  obstruction  of  the 
street.  There  is  an  essential  difference  between  a  fixed  obstruc- 
tion and  a  moving  one.  One  is  exercising  the  easement  of 
passage  and  the  other  is  interfering  with  it.  There  is  no  distinc- 
tion between  the  poles  for  the  electric  railway  and  telegraph 
poles,  and  neither  one  nor  the  other  can  be  set  up  without  the 
consent  of  the  landowner. 

On  appeal  to  the  Circuit  court  this  decision  was  reversed.'  The 
court  held  that  the  sidewalk  was  a  part  of  the  highway,  and 
to  be  dealt  with  as  such  ;  that  the  margins  of  sidewalks  have  for 
centuries  been  appropriated  for  placing  shade  trees,  lamp  posts, 
hitching  posts,  and  similar  structures,  and  that  these  new  poles  did 
not,  in  fact,  obstruct  the  access  to  the  plaintiff's  land  and  imposed 
no  new  burden  upon  it ;  that  the  electric  current  used  was  not 
dangerous ;  that  the  use  of  the  street  by  the  electric  cars  was 
substantially  the  same  as  that  by  horse  cars,  the  mode  of  travel 
being  the  same,  the  only  change  being  in  the  motive  power. 
The  poles  were  allowed  to  stand. 

§  18.  Pelton  V.  East  Cleveland  R.  R.  Co. — This  decision  was 
quoted  and  approved  by  the  court  of  common  pleas  for  Cuya- 
hoga county,  Ohio,  in  Pelton  v.  East  Cleveland  R.  R.  Co.,  Jan- 
uary, 1889.'  The  court  said  that  the  question  of  speed  and  of 
danger  to  travelers  on  the  street  might  safely  be  left  to  the 
municipal  authorities,  and  that  although  the  poles  added  nothing 
to  the  beauty  of  the  street,  yet  the  burden  or  obstruction  created 
was  more  fancied  than  real,  and    that  it  could   not  be  said  in 

^  SS  Mo.  258,  chapt.  VIII,  ^  10  supra. 
-  3  Ohio  Circuit  Court  Rep.  425. 
»22  WeeV.  T^ull.  &  O.  L.  J.  67. 


§  19-]  IN    STREETS   AND   HIGHWAYS.  IO9 

seriousness  that  the  poles  and  wires  would,  if  properly  placed, 
obstruct  the  light  and  air,  or  interfere  with  the  ingress  and  egress 
to  and  from  the  plaintiff's  land.  An  injunction  was  refused. 
This  case  came  before  the  Circuit  court  of  the  same  county  on 
appeal,  and  upon  a  supplemental  petition  alleging  that  the  run- 
ning of  the  cars  made  a  great  deal  of  noise  and  danger,  that  the 
electric  current  was  dangerous  and  not  under  control,  and  that 
the  whole  system  was  a  public  nuisance  and  should  be  abated. 
The  court  held  that  there  was  a  question  on  the  evidence 
whether  the  noise  was  greater  than  that  of  horse  cars  ;  but  that 
it  was  different,  and  people  were  not  accustomed  to  it,  and  that 
as  a  mode  of  using  the  streets  it  was  subject  to  regulation  by  the 
common  council  ;  that  the  danger  from  speed  was  also  a  matter 
for  the  council  to  regulate,  and,  as  to  the  electricity  itself,  the 
weight  of  evidence  was  that  the  current  used  was  not  very 
dangerous.     The  injunction  was  refused. 

§  19.  Taggart  v.  Newport  St.  Railway  Co. — The  first  decision  by 
the  Supreme  Court  of  a  State  seems  to  be  that  in  Taggart  v.  TJie 
Neivport  St.  Railway  Co.,  already  referred  to.'  This  was  decided 
January  25,  1890,  and  the  opinion  was  read  by  Chief  Justice 
Durfee.  A  bill  was  filed  by  owners  of  abutting  land  to  restrain  a 
street  railway  company  from  erecting  poles  and  wires  in  front  of 
their  houses  for  the  purpose  of  carrying  an  electric  current  to 
propel  the  street  cars.  The  poles  were  to  be  placed  one  hundred 
and  twenty  feet  apart,  and  along  the  margin  of  the  sidewalks. 
The  act  of  incorporation  of  the  company  provided  that  the  road 
might  be  operated  "  with  steam,  horse  or  other  power,  as  the 
councils  of  the  city  might  from  time  to  time  direct."  The  per- 
mission of  the  council  to  use  the  overhead  electric  system  had 
been  given  by  ordinance.  The  court  held  that  the  right  to  use 
electricity  might  be  inferred  from  the  words  of  the  charter,  and 
that  this  was  probably  meant  by  the  words  "  other  power"  in  an 
act  passed  in  the  year  1885  ;  that  the  poles  did  not  incumber  the 
streets,  within  the  meaning  of  a  clause  in  the  charter  forbidding 
the  incumbrance  of  any  portion  of  the  street  not  occupied  by 
the  tracks;  and,  lastly,  that  street  railways  operated  by  electricity 
by  means  of  poles  and  wires  do  not  constitute  an  additional  ser- 
vitude upon  the  land.  The  court  said  it  was  well  settled  that 
an  ordinary  steam   railroad    does  impose  a  new  servitude,   and 

^  16  R.  I.  668;  19  Atl.  Rep.  326;  7  L.  R.  A.  205,  with  note;  2   Am.  Railroad 
&  Corp.  Rep.  44,  with  note ;  43  Am.  &  Eng.  R.  R.  Cas.  20S. 


no  ELECTRIC   WIRES  [§  20. 

that  a  horse  railroad  does  not ;  that,  although  the  distinction  is 
often  stated  as  a  distinction  between  steam  and  horse  railroads,  it 
properly  rests,  not  on  any  difference  in  motive  power,  but  on  the 
different  effects  produced  by  them  respectively  on  the  highways 
and  streets  which  they  occupy.  It  is  not  the  motor,  but  the  kind 
of  occupation,  whether  practically  exclusive  or  not,  which  is  the 
criterion.  A  steam  railroad  comes  into  serious  conflict  with  the 
usual  modes  of  travel,  whereas  an  ordinary  street  railway,  instead 
of  adding  a  new  servitude,  operates  in  furtherance  of  the  original 
uses  of  the  street.  The  danger  from  the  electric  current,  or  from 
the  frightening  of  horses,  does  not  appear  to  be  sufficient  to 
create  a  new  servitude. 

In  answer  to  the  suggestion  that  telegraph  and  telephone  poles 
and  wires  have  been  held  to  constitute  a  new  servitude,  the  court 
said  that  these  are  not  used  to  facilitate  the  use  of  the  street  for 
travel  and  transportation,  or  if  so,  very  indirectly  so,  ''  whereas 
the  poles  and  wires  now  in  question  are  directly  ancillary  to  the 
uses  of  the  street  as  such,  in  that  they  communicate  the  power 
by  which  the  street  cars  are  propelled ;  "  and  the  Chief  Justice 
alluded  to  the  significant  fact  that  telegraph  lines  erected  by  a 
railroad  company  within  its  right  of  way  to  increase  the  safety 
and  eflficiency  of  the  railroad  were  held  not  to  be  a  new  burden, 
but  only  a  legitimate  development  of  the  easement  already 
acquired.'     The  injunction  was  refused. 

§  20.  Detroit  City  Railway  Co.  v.  Mills. — After  this  came  several 
more  decisions  of  inferior  courts.  There  is  one  by  Judge  Reilly, 
of  the  Circuit  court,  of  Wayne  County,  Michigan,  which  was  af- 
terwards afifirmed  by  the  Supreme  court."  Referring  to  Judge 
Cooley's  opinion  in  a  case  in  Michigan^  that  a  street  railway  was 
a  proper  use  of  a  city  street,  although  a  steam  railroad  was  not, 
he  held  that  a  street  railway  operated  by  electricity  imposed  no 
new  servitude.  The  poles,  he  said,  being  placed  along  the  margin 
of  the  street,  where  other  posts  are  put,  do  not  interfere  with 
travel.  The  cars,  he  admitted,  frightened  horses  (they  had 
frighted  his  own),  but  the  horses  would  get  accustomed  to  them, 
and  the  wires  were  only  dangerous  in  case  of  accident.  He 
granted  an  injunction  against  cutting  down  the  poles. 

'  See  Chapter  XIII  on  Telegraphs  and  Railroads. 

*  Detroit  City  R.  R.  Co.  v.  Mills,  Circuit  Court  of  Wayne  Co.,  Mich.,  1890. 
Affirmed  May  6,  1891;  85  Mich.  634;  4S  N.  W.  1007;  10  R.  R.  Corp.  L.  J.  104. 
See  infra,  §  26,  Chapter  X. 

^  Grand  Rapids,  etc.,  R.  R.  Co.  v.  Heisel,  47  Mich.  393. 


§23-]  IN   STREETS  AND    HIGHWAYS.  Ill 

§  21.  Lonisville  Bagging  Manufacturing  Co.  v.  Central  Pass.  Rail- 
way  Co. — The  subject  was  discussed  in  all  its  aspects  in  a  long 
opinion  by  Judge  Toney,  of  the  Louisville  Law  and  Equity 
court,  on  June  30,  1890.'  He  referred  to  the  authorities  by  which 
it  has  been  held  that  a  horse  railroad  is  not  a  new  servitude,  and 
quoting  the  opinion  in  the  Rhode  Island  case,  he  said  that  he  was 
satisfied  that  the  conversion  of  the  horse  cars  into  electric  cars, 
and  the  construction  of  poles  and  appliances  necessary  for  the 
operation  of  the  cars  by  electricity,  did  not  constitute  a  new  ser- 
vitude entitling  the  plaintiff  to  compensation.  Examining  the 
question  of  danger  to  the  plaintiff's  servants  and  property  from 
the  overhanging  wires  and  from  running  the  cars  by  electricity, 
the  judge  discoursed  eloquently  on  the  mysteries  of  electricity, 
and  after  examining,  he  says,  the  evidence  in  the  case,  and  all  the 
accessible  literature  on  the  subject,  he  decided  that  the  single 
wire  trolley  system  had  proved  to  be  safe  and  that  there  was  no 
ground  for  an  injunction. 

§  22.  Lonergan  v.  Lafayette  St.  Railway  Co. — In  Lonergan  v. 
Lafayette  St.  Railway  Co.,''  already  referred  to,  it  was  held  that  the 
purpose  of  the  street  railway,  whether  it  was  operated  by  elec- 
tricity or  by  horses,  remained  the  same ;  that  it  was  well  settled  that 
horse  railroads  are  a  proper  use  of  the  street,  and  do  not  impose 
a  new  servitude  upon  the  land,  and  that  there  was  not,  in  the 
mode  of  operation  of  the  electric  road,  sufificient  in  the  way  of 
noise  or  danger  to  make  such  a  substantial  or  permanent  impair- 
ment of  the  use  of  the  street  by  the  general  public  as  to  lead  to 
the  inference  than  an  additional  burden  has  been  imposed  upon 
the  land. 

§  23.  Ilalsey  v.  Rapid  Transit  St.  Railway  Co. — A  well  consid- 
ered decision,  is  that  of  Vice-Chancellor  Van  Fleet,  of  New 
Jersey,  from  which  we  have  quoted  already.  The  case  is  Halsey 
V.  Rapid  Transit  St.  Railway  Co.,  court  of  chancery,  N.  J.,  Dec. 
6,  1890.'  The  company  was  organized  under  a  general  law, 
passed  in  1886,  "  to  provide  for  the  incorporation  of  street  rail- 
ways and  to  regulate  the  same."  Nothing  is  said  in  the  act 
about  the  kind  of  motive  power  to  be  used.  This  general  grant 
was  of  itself  sufficient,  the  court  said,  to  include  electric  power, 
and  the  decision  on  this  point  has  been  quoted   already.     There 

^Louisville    Bagging    Mfg.    Co.  v.  ^  ^jrcuit  court  at  Lafayette,  Indiana, 

Central  Passenger  R.R.  Co.,  Louisville  July  9,  1S90.     Supra,  Chapter  II. 

Law  and  Equity  Court,  Louisville,  Ky.  ^  47  N.  J.  Eq.  3S0 ;  20  Atl.    Rep.  S59 ; 

Opinion  filed  June  30,  1S90.  46  Am.  &  Eng.  R.  R.  Cas.  76,  with  note. 


112  ELECTRIC  WIRES  [§23. 

was,  however,  other  legislation ;  a  statute  had  been  passed 
authorizing  any  street  railroad  to  use  electric  motors,  with  the 
consent  of  the  city.  Such  consent  had  been  given  by  resolution 
specifying  the  overhead  system,  and  providing  for  poles  either 
on  the  sides  or  in  the  middle  of  the  street,  every  other  pole  in 
the  middle  of  the  street  to  be  furnished  with  a  group  of  incan 
descent  lights.  The  railroad  company  was  about  to  put  up  poles 
one  hundred  and  twenty-five  feet  apart,  in  the  middle  of  the 
street,  in  front  of  the  complainant's  tannery.  The  bill  was  filed 
for  an  injunction,  and  it  was  insisted  that  the  resolution  of  the 
common  council  went  beyond  the  statute  in  authorizing  the  use 
of  poles,  that  the  poles  occupied  land  belonging  to  the  com- 
plainant and  interfered  with  his  easements  in  the  street,  for  all 
of  which  he  was  entitled  to  compensation,  and  that  this  not  being 
provided  for,  the  acts  of  the  company  were  unlawful. 

The  Vice-Chancellor  held  that  the  overhead  system  was  in- 
cluded in  the  legislative  grant ;  that  the  testimony  of  Thomas  A. 
Edison  and  other  witnesses  showed  that  this  was  the  best  elec- 
trical system,  and  the  only  one  which  as  yet  had  proved  success- 
ful, and  that  the  poles  and  wires  were  in  the  present  state  of  the 
art  necessary  to  the  successful  operation  of  the  defendant's  rail- 
way by  electricity. 

"  They  form  part,"  he  said,  "  of  the  means  by  which  a  new  power, 
to  be  used  in  the  place  of  animal  power,  is  to  be  supplied  for  the 
propulsion  of  street  cars,  and  they  have  been  placed  in  the  street  to 
facilitate  its  use  as  a  public  way,  and  thus  add  to  its  utility  and 
convenience.  .  .  .  The  whole  matter  may  be  summed  up  in 
a  single  sentence  :  the  poles  and  wires  have  been  placed  in  the 
street  to  aid  the  public  in  exercising  their  right  of  free  passage 
over  the  street.  That  being  so,  it  seems  to  me  to  be  clear  be- 
yond question  that  the  poles  and  wires  do  not  impose  a  new 
burden  upon  the  land,  but  must,  on  the  contrary,  be  regarded 
both  in  law  and  reason  as  legitimate  accessories  to  the  use  of  the 
land  for  the  very  purposes  for  which  it  was  acquired.  They  are 
to  be  used  for  the  propulsion  of  street  cars,  and  the  right  of  the 
public  to  use  the  streets  by  means  of  street  cars,  without  making 
compensation  to  the  owners  of  the  naked  fee  in  the  street,  is  now 
so  thoroughly  settled  as  to  be  no  longer  open  to  debate.  It 
would  seem,  then,  to  be  entirely  certain  that  the  occupation  of 
the  street  by  poles  and  wires  takes  nothing  from  the  complainant 
which  the  law  reserved  to  the  original  proprietor  when  the  public 
easement  was  acquired." 


§23-]  IN   STREETS  AND    HIGHWAYS.  IIJ 

The  Vice-Chancellor  cited  with  approval  the  cases  above  re- 
ferred to  in  Rhode  Island,  Kentucky,  Ohio  and  Indiana,  and 
said  the  question  whether  there  was  a  new  burden  must  be  de- 
termined by  the  use  which  the  new  method  makes  of  the  street, 
and  not  the  motive  power  which  it  employs  in  such  use.  And 
this  principle,  he  said,  "  exhibits  in  a  very  clear  light  the  reason 
why  it  has  been  held  that  telegraph  and  telephone  poles  do  im- 
pose a  new  burden,  since  they  are  placed  in  the  street,  not  to  aid 
the  public  in  their  right  of  free  passage,  but  in  the  transmission 
of  intelligence;  and  although  streets  are  used  for  this  purpose  in 
carrying  the  mails,  yet  this  mode  differs  so  essentially  from  their 
general  and  ordinary  use,  that  the  general  current  of  authority, 
with  an  exception  in  Massachusetts,  has  declared  that  it  does  not 
come  within  the  public  easement." 

The  Vice-Chancellor  added,  that  the  poles  in  the  present  case 
served  an  ordinary  public  purpose  in  lighting  the  streets,  and  also 
that  with  respect  to  danger  from  the  current,  the  proofs  showed 
that  the  current  employed  might  be  used  with  entire  safety  to 
everybody.  In  answer  to  the  contention  that  the  poles  ought 
not  to  be  placed  in  the  middle  of  the  street,  the  court  said  that 
this  part  of  the  street  was  especially  subject  to  public  control, 
and  that  the  complainant  had  fewer  privileges  with  respect  to  it 
than  in  the  sidewalk,  and  that  the  poles  were  placed  in  a  part  of 
the  street  of  which,  so  long  as  it  was  used  as  a  street,  the  com- 
plainant, by  virtue  of  his  title  to  the  fee,  could  not  make  any 
use  whatever.' 

An  application  was  made  to  the  supreme  court  of  New  Jersey, 
before  this  decision  was  rendered,  for  writs  of  certiorari  to  review 
the  resolution  of  the  common  council  of  Newark,  giving  permis- 
sion to  the  Rapid  Transit  Street  Ry.  Co.  and  the  Newark  Pas- 
senger Ry.  Co.  to  set  up  poles  and  wires  for  the  electric  current, 
and  to  also  review  an  ordinance  of  the  common  council  of  Tren- 
ton, giving  a  similar  privilege  to  the  Trenton  Horse  Railroad  Co. 
to  use  the  streets  of  Trenton.  The  court  allowed  the  writ,  and 
testimony  was  taken  to  show  whether  at  the  time  of  the  passage 
of  the  act  of  March  6,  1886,  electric  motors  were  supplied 
with    electricity  by  the   storage  battery  or  by   means  of   poles 

'  This  decision  was  followed  in  Koch  v.  North  Ave.  Ry.  Co..  23  Atl.  Rep. 

463  (Md.  Ct.  App.,  1892).     See  also  North  Balto.  Pass.  Ry.  Co.  v.  North  Ave. 

Ry.  Co.  23  Atl.  Rep.,  466,  470;    Farrell  v.  Winchester  Ave.  Ry.  Co.,  6i  Conn. 

127,  23  Atl.  Rep.  757;  Williams  v.  Citizens'  Ry.  Co.,  29  N.  E.  Rep.4oS  (Ind.). 

E.  W.— 8 


1 14  ELECTRIC  WIRES  [§  24. 

and  wires.  The  cases  were  decided  January  8,  1892/  and  the  court, 
while  expressly  saying  that  it  did  not  rest  its  decision  upon  the 
rights  of  the  abutting  owners,  held  that  the  poles  and  wires  were 
an  obstruction  of  the  street  which  was  not  authorized  by  the 
statute  giving  permission  to  use  electric  motors.  They  said  the 
city  council  had  no  power  without  distinct  legislative  authority 
to  permit  the  obstruction  of  the  streets,  even  though  the  obstruc- 
tion was  incidental  to  the  use  of  a  street  railway.  Referring  to 
the  evidence,  they  said  it  appeared  that  cars  operated  by  storage 
batteries  had  been  in  operation  for  five  years  at  the  time  of  the 
passage  of  the  act,  and  that,  therefore,  the  act  did  not  imply  the 
right  to  use  poles  and  wires.  They  said  the  electric  railway  with 
respect  to  its  obstruction  of  the  street  was  rather  to  be  compared 
with  the  steam  railroad  than  the  horse  railroad,  and  that  the 
planting  of  poles  was  not  an  ordinary  or  proper  use  of  the  street, 
but  that  an  abutting  landowner  had  a  right  to  complain  if  a  pole 
was  put  on  any  part  of  his  land,  even  in  the  middle  of  the  street, 
and  was  entitled  to  a  writ  of  certiorari  to  have  the  resolution  or 
ordinance  set  aside.  The  court  did  not  allude  to  the  decision  of 
Vice-Chancellor  Van  Fleet,  nor  to  any  of  the  other  cases  on 
electric  railroads  referred  to  in  this  chapter.* 

Although  the  question  of  a  new  burden  upon  the  lands  was 
expressly  reserved,  it  is  plain  that  the  Supreme  court  regarded 
the  erection  of  the  poles  as  a  perversion  of  the  proper  uses  of 
the  streets,  and  so  disallowed  the  premises  of  the  Vice  Chancel- 
lor's argument,^ 

§  24.  Lockhart  v.  Craig  St.  Eailway  Co. — The  opinion  of  the  Vice- 
Chancellor  was  confirmed  by  a  decision  of  the  Supreme  court  of 
Pennsylvania  rendered  at  about  the  same  time,  and  without  refer- 
ence to  his  decision.  The  case  was  Lockhart  v.  Craig  St.  Rail- 
way Co.*     The  opinion    of    Stone,    J.,    in  the    court    below  was 

1  State,  Halsej,  pros.  v.  City  of  New-  §  20  (p.  22),  supra.     It  appeared  in  the 

ark,   23   Atl.  Rep.   281  ;   15  N.  J.  Law  case  that  the  storage  battery  was  only 

Journal  39;  State,  Green,  pros,  v.  City  used  on  three   or  four  cars  in  Europe 

of  Trenton,  23  Atl.  Rep.  284;  15   N,  J.  before  1886,  and  that  the  first  car  was 

L.  J.  45,  with  a  note  giving  a  summary  brought  to  this  country  in  October  of 

of  the  evidence  on  the   subject  of  the  that  year.  There  was  also  proof  undis- 

prior  use  of  the  storage   battery  and  puted  that  five  railroads  in  this  coun- 

the  trolley   system    and    referring   to  try  were  operated  by   the  trolley  sys- 

cases.  tern  as  early  as  the  winter  of  1885-6. 

*  For  a  further  statement  of  this  case  '  See  §  23  in  this  chapter, 

and  of  the  evidence  relating  to  the  use  *8  Phila.  County  Court  Rep.  470;  37 

of  the  storage  battery  and   the   trolley  Pittsburg    Law    Jour.    479;     21    Atl. 

system  in  March,  1886,  see  Chapter  II,  Rep.  26  (Jan.  6, 1891) ;  139  Pa.  St.  419. 


§  25.J  IN  STREETS  AND   HIGHWAYS.  II5 

affirmed  by  the  Supreme  court.  The  poles  and  wires  were  to  be 
placed  along  the  line  of  the  curbstone.  As  to  the  wire:,,  the 
judge  said: 

"The  placing  of  the  wires  over  the  streets  does  not  appeal  to  be 
a  taking  of  plaintiff's  property.  The  streets  are  dedicated  to  the 
public  use,  and  he  has  certain  special  rights  as  an  abutting 
owner,  but  I  cannot  see  how  a  wire  run  through  the  air  above  the 
streets  can  be  said  to  be  a  taking,  injury,  or  a  destroying  of  his 
property." 

As  to  the  posts,  he  said  that  in  Pennsylvania  it  had  been  gen- 
erally  understood  that  the  landowner  had  a  fee  to  the  middle  of 
the  adjoining  street,  and  that  the  public  had  only  a  right  of  pas- 
sage over  it,'  but  this  must  not  be  taken  in  a  literal  sense,  espe- 
cially in  towns  and  cities,  and  he  referred  to  the  common  use  of 
the  streets  for  gas  pipes,  water  pipes,  awning  posts,  fire  plugs  and 
lamp  posts,  all  of  which,  he  said,  **more  or  less  impinge  upon  the 
absolute  right  of  an  owner  of  the  soil,  and  are  not  necessary  to 
accommodate  public  travel  or  even  consistent  with  the  public 
right  to  an  unobstructed  passage  way."  He  referred  to  Taggart 
v.  Newport  St.  Ry  Co.  as  a  case  directly  in  point,  and  said : 

"  My  own  impression  is  that  the  use  of  poles,  wires  and  other 
necessary  appliances,  such  as  proposed  being  used  by  defendants, 
is  not,  in  any  respect,  a  greater  interference  with  the  ownership 
of  the  adjoining  property  owner  on  a  street  than  the  use  of  streets 
for  fire-plugs,  horse-troughs,  and  lamp  posts,  which  have  long  and 
generally  been  recognized  as  within  the  power  and  control  of  the 
city  government.  Recognizing  the  right  of  the  legislature  and 
city  authorities  to  authorize  the  building  of  railways  upon  streets 
of  a  city  without  compensation  to  property  owners,  because  it  is 
a  means  of  public  transportation  and  accommodation,  the  neces- 
sary and  proper  apparatus  for  moving  them  must  be  allowed  to 
follow  as  an  incident,  unless  there  is  something  illegal  in  its  con- 
struction or  use."     An  injunction  was  refused. 

§  25.  Saginaw  Union  Street  Railwa'^  Cases. — There  are  two  re- 
cent cases  in  Michigan,  in  which  relief  against  the  electric  railway 
was  denied  the  landowner,  but  which,  nevertheless,  suggest  that 
he  may  have  legal  ground  for  complaint.  They  were  both  suits 
against  the  Saginaw  Union  Street  Railway  Co."*     In  one  it  was 

»  Chambers  v.  Ferry,    i   Yeates  167  ;  R.  R.  &  Corp.  L.  J.  34 ;  47  N.  W.  Rep 

Lewis  V.  Jones,  i  Pa.  St.  336.  217 ;     Barber   v.    Saginaw    Union    St 

*  Potter  V.  Saginaw  Union  St.  R.  R.  R.  R.  Co.,  83  Mich.  399 ;  47  N.  W.  Rep. 

Co.,  83  Mich.  285;   ID  L.  R.  A.  176;  9  219. 


Il6  ELECTRIC   WIRES  [§26. 

held  that  an  injunction  against  the  use  of  electricity  on  a  street 
railway  would  not  be  granted  to  an  owner  of  vacant  land  on  the 
ground  that  when  he  built  a  house  there  the  operation  of  the  line 
by  electricity  would  be  annoying  and  dangerous.  Nothing  was  said 
about  poles,  but  it  was  held  that  mere  apprehension  of  future  injury 
was  not  sufifiicient,  especially  in  a  case  in  which  large  sums  of 
money  have  already  been  spent  by  defendant  in  constructing 
their  electric  apparatus.  In  the  other  case,  it  appeared  that  the 
track  was  wholly  on  the  further  side  of  the  street,  and  that  the 
defendant  had  removed  all  poles  and  wires  from  in  front  of  the 
premises  of  the  plaintiff ;  and  it  was  held  that  he  was  en- 
titled to  no  relief  except  a  perpetual  injunction  against  erecting 
poles  and  wires  in  front  of  his  premises  (and  on  his  side  of  the 
street),  without  his  consent.  The  subject  was  not  discussed,  but 
it  would  seem  that  the  court  thought  that  the  setting  up  of  poles 
in  the  plaintiff's  land  in  the  street  was  an  invasion  of  his  rights. 

§  26.  Detroit  City  Ry.  Co.  v.  Mills  on  Appeal. — These  decisions  were 
followed,  however,  by  another  at  the  same  term  relating  to  the  same 
kind  of  electrical  apparatus.'  The  complainant  was  a  street  rail- 
way company  having  lines  in  the  city  of  Detroit,  and  was  author- 
ized by  the  common  council  to  extend  its  lines  through  Mack 
street,  and  to  substitute  in  lieu  of  animal  power  such  system  of 
electric  or  other  motive  power,  except  steam,  as  should  seem 
best,  upon  any  and  all  of  its  lines.  Poles  were  put  up  along 
both  sides  of  Mack  street  in  front  of  the  defendant's  lands,  and  he 
cut  them  down  and  threatened  to  continue  to  do  so  as  often  as 
they  were  put  up.  On  a  bill  filed  for  injunction  against  this, 
and  on  a  cross-bill  praying  a  perpetual  injunction  against  the 
use  of  the  railway,  it  was  held  that  in  the  absence  of  injury  to 
his  right  of  ingress  and  egress,  and  to  his  right  of  free  passage 
over  the  street,  the  abutting  landowner  had  no  cause  to  com- 
plain of  poles  set  up  for  the  purpose  of  propelling  street  cars  for 
public  travel. 

There  was  a  difference  of  opinion  between  the  judges.  Three 
concurred  in  the  decision  and  two  dissented.  Grant,  J.,  with 
whom  Long,  J.,  concurred,  maintained  emphatically  that  however 

In    Electric    R.   R.    Co.    v.    Grand  it  cannot  insist  upon  the  furnishing  of 

Rapids,  84  Mich.  257;  47    N.  W.  Rep.  transfer  tickets  as  a  condition   of    per- 

567,  it  was  held  that  when    a   common  mission     to     use    a    certain    kind     of 

council    had     given    a    street   railway  pole. 

company  permission  to  operate  its  line  ^  Detroit  City  R.  R.v.  Mills, 84  Mich. 

*3y  electricity,  the  kind  and  pattern  of  634;  48    N.  W.  Rep.   1007;   10  R.  R.  & 

poles  to  be  approved   by  the   council,  Corp.  L.  J.  104  (May  8,  1891). 


§26.]  IN   STREETS   AND    HIGHWAYS.  IIJ 

it  might  be  with  country  highways,  it  was  well  settled  that  the 
streets  of  a  city  might  be  used  for  any  purpose  which  was  a 
necessary  public  one,  and  that  for  any  such  use  the  abutting 
landowner  would  not  be  entitled  to  a  new  compensation  whether 
he  owned  the  fee  in  the  street  or  not.  He  referred  to  the  cases  in 
which  it  had  been  held  that  horse  railroads  are  not  a  new  burden 
upon  the  land,  and  said  the  electric  railway  was  only  an  improved 
method  of  making  the  same  use  of  the  streets. 

"  The  poles,"  he  said,  "  are  a  necessary  part  of  the  system. 
When  they  do  not  interfere  with  the  owner's  access  to  and  use 
of  his  land,  we  see  no  reason  why  they  should  be  held  to  consti- 
tute an  additional  servitude.  Certainly  they  constitute  no  injury 
to  his  reversionary  interest.  To  constitute  an  additional  servi- 
tude, they  must  be  an  injury  to  the  present  use  and  enjoyment 
of  his  land,"  and  the  court  distinguished  them  in  this  respect 
from  the  elevated  railroad  and  the  steam  locomotive,  and  said 
that  if  they  were  unsightly  they  were  no  more  so  than  the  lamp- 
post and  the  electric  tower,  and  that  it  is  as  necessary  that  rapid 
transit  be  furnished  to  a  crowded  city  as  it  is  that  light  should  be 
furnished  to  its  streets. 

Campbell,  C.  J.,  while  concurring  in  the  decision,  said  he  was 
not  prepared  to  say  that  a  street  railroad  track  is  of  itself  no 
additional  burden,  that  he  thought  it  was,  but  to  what  extent, 
depends  upon  all  the  circumstances  of  the  case.  If  in  any  case 
it  becomes  a  nuisance  and  causes  damage,  the  abutting  owner 
has  his  remedy  at  law.  And  so  with  regard  to  the  setting  of  poles 
to  aid  the  propulsion  of  cars  by  electricity,  he  said:  "  I  do  not 
think  ordinarily  it  is  such  a  taking  of  private  property  as 
requires  condemnation  and  compensation  before  the  poles  can 
be  set ;  but  I  think  that  if  the  owner  suffers  damage  on  account 
of  the  erection  of  poles,  he  should  seek  his  remedy  at  law  for 
such  damage."  McGrath  and  Morse,  J  J.,  dissented  ;  McGrath,  J., 
insisted  most  earnestly  that  a  street  railway,  whether  operated 
by  animal  power,  electricity  or  steam,  was  an  additional  burden. 
"Any  fixed  right  of  way  in  a  street,"  he  said,  "  is  a  burden  upon 
that  street.  Any  use  of  a  street,  a  like  use  of  which  is  not  com- 
mon to  all,  is  a  new  servitude.  Any  use  of  a  street  which  nar- 
rows the  street,  or  which  interferes  with  the  use  of  any  part  of  the 
street  by  the  public,  or  confines  the  public  to  a  use  of  but  a  part 
of  the  street,  is  an  added  burden."  And  he  made  a  strong 
argument  to  show  that  no  railroad  ought  to  be  allowed  to  be 
operated    in    a    street    without    making    compensation    to    the 


Il8  ELECTRIC   WIRES  [§27- 

landowner  for  the  damage  actually  sustained  by  reason  of  the 
change  in  the  use  of  the  street. 

Morse,  J.,  concurred  in  this  opinion,  and  insisted  also  that 
the  operation  of  a  street  railway,  and  especially  an  electric  rail- 
way, interfered  with  the  access  to  property  and  with  ordinary 
travel,  and  was  injurious  to  the  property  and  disagreeable  to  the 
owners,  and  that  public  convenience  was  not  a  good  reason  for 
inflicting  injury  upon  individuals  without  compensation. 

It  is  to  be  observed,  that  these  dissenting  opinions  make  no 
distinction  between  the  electric  railway  and  the  horse  railway. 
The  former  may  be  a  little  worse,  but  both  are  on  principle  a 
perversion  of  the  purpose  of  the  street  and  a  damage  to  the 
landowner.  That  is  not  a  question  we  need  attempt  to  discuss. 
We  have  to  do  only  with  use  of  the  poles  and  wires,  and  there 
is  no  reason  given  in  these  dissenting  opinions  why  the  electric 
system  may  not  be  used  if  it  is  determined  that  a  horse  railway 
is  a  proper  use  of  the  street.'  In  a  later  case  in  Michigan  relat- 
ing to  a  railroad  operated  by  a  dummy  steam  engine  the  decision 
in  the  Mills  case  was  approved,  and  the  court  said  the  answer  to 
the  question  whether  the  landowner  was  entitled  to  compensa- 
tion or  not  depended  on  the  mode  of  use  of  the  street  rather 
than  on  the  motive  power  employed.' 

§  27.  Conclusions. — It    is  no  doubt   true   that  all  railroads    do 

^  In  Tracy  V.  Troy  &    Lansingburgh  property  being  required  by  the   con- 

R.  R.  Co.,  54  Hun  550,  it  was  held  that  stitution    for    the    construction    of    a 

an  injunction   against  the  use  of  poles  street   railway,   it   was   held    that    an 

should  be  vacated  where   it   appeared  electric    railway    could    not    be   built 

that  the   plaintiff  had   no  further    in-  without    it,   but   in    the   Third    Ave. 

ducement  to  press  his  suit,  and  that  the  Railroad  case,  where  it  appeared  that 

effect  of   the  injunction   would  be   to  the  charter  of   a   horse   railroad  was 

retard  a  work  of  public  utility.  granted  before  the  constitutional  pro- 

In  re  Rochester  Electric  R.  R.  Co.,  vision  was   adopted,  it  was   held  that 

33  N.  Y.  St.  R.  695 ;    25    N.    E.    Rep.  the   consent  was   not   required   for   a 

381,  it  was  held  that  where  the  consti-  change  to  the  cable  system, 

tution    requires    consent   of    one-half  Authority    to    use   "the    power    of 

the  property  owners,   before   proceed-  horses    or    any     mechanical     power" 

ings  are  taken  to  condemn  land   for  a  embraces    electricity.      Hudson  River 

street  railway,  this   consent   is  a   pre-  Teleph.   Co.   v.    Watervliet   Turnpike 

requisite  to   proceedings  to   condemn  Co.,  56  Hun  67 ;  Taggart  v.  Newport 

private  property  for   an    electric  rail-  St.  Ry.  Co.,  16  R.  I.  668;  19  Atl.  Rep. 

way.     See  also  People  v.  Gilroy,  9   N.  326;  7  L.  R.  A.  205;  Williams  v.  City 

Y.  Supp.  686,  833  ;  In  re  Third  Ave.  R.  Electric  R.  R.  Co.,  41  Fed.  Rep.  556. 

R.  Co.,  24  N.  E.  Rep.  951  (N.  Y.)  ^  Nichols  v.  Ann  Arbor  &  Y.  St.  R. 

In  the  former  case   (Gilroy's),   the  R.  Co.,  87  Mich.  361  ;   49  N.  W.  Rep. 

consent  of  the  owners  of  one-half  the  53S.     See  §  11,  Chapter  X. 


§  28.]  IN  STREETS  AND   HIGHWAYS.  1 19 

affect  in  some  degree  the  use  of  a  street ;  they  do  claim  some 
exclusive  use ;  they  divide  the  street  into  two  parts ;  and  if  it  is 
narrow,  they  make  it  impossible  to  leave  a  wagon  standing  at 
the  curbstone.  The  electric  road  may  have  some  additional 
elements  of  danger  and  obstruction,  and  it  may  well  be  that  the 
solution  of  the  difficulty  is  to  be  found  in  the  suggestion  of  Chief 
Justice  Campbell,  that  a  person  who  suffers  actual  damage  shall 
be  entitled  to  compensation  for  the  injury  he  sustains.  Whether 
the  operation  of  the  railroad  is  a  new  burden  is  a  different  ques- 
tion, and  it  might  tend  to  a  reconciliation  of  the  cases  and  the 
adoption  of  a  uniform  rule  if  the  question  of  new  burden  were 
left  on  one  side,  and  the  attention  were  directed  to  the  practical 
question  whether  the  rights  and  privileges  of  the  abutting  owner 
in  the  use  of  the  street  were  affected  or  not  by  the  operation  of 
the  railroad. 

§  28.  The  Electric  Railway  Used  as  a  Substitute  for  the  Steam  Rail- 
way—  Mode  of  Use  the  Criterion. — These  cases  relate  to  the  elec- 
tric railway  used  for  the  same  purposes  as  horse  cars,  and  operated 
on  the  streets  of  a  city.  Since  the  reasoning  is  based  upon  the 
purpose  of  the  use,  it  may  well  be  that  if  cars  were  run  at  a  high 
rate  of  speed  along  a  country  road  from  one  town  to  another  in 
such  a  way  as  to  afford  no  access  to  abutting  land,  or  so  as  to 
make  the  use  of  the  street  dangerous  for  ordinary  travel,  or  so  as 
to  take  exclusive  possession  of  a  part  of  the  street,  it  would  be 
held  that  this  was  in  fact  a  perversion  of  the  use  of  the  street.' 
In  short,  if  the  electric  railway  were  used  like  the  steam  railway, 
it  would  be  classed  with  it  and  be  subject  to  the  same  ruling;  and 
if  the  electric  motor  were  used  as  the  steam  dummy  is  used,  it 
would,  like  the  dummy,  be  in  a  doubtful  position.  In  fact,  it  is 
not  the  motive  power  but  the  mode  of  using  the  street  which  de- 
termines the  question  whether  the  railroad  constitutes  a  new 
burden  upon  the  land,  and  if  the  railroad  is  not  a  new  burden, 
the  poles  and  wires  being  in  fact  a  part  of  the  railroad  and  in- 
tended for  the  purpose  of  operating  it,  do  not  constitute  a  bur- 
den and  are  not  an  injury  to  the  landowner,  unless  as  a  matter  of 
fact  they  obstruct  the  access  to  the  street  or  in  some  way  affect 
his  right  to  the  use  of  the  street  in  connection  with  his  land. 

'  See,  however,  Pelton  v.  East  Cleve-  to  the  right  of  the  owner  to  compen- 

land  R.  R.  Co.,  Ohio   (Cuyahoga  com.  sation,  the  speed  being  a  matter  upon 

pleas),     22    Week.     Bull.     67,    where  which  it  was  competent  for  the  city 

it  was  held  that  the  fact  that  a  speed  council  to  legislate.     See  also  Nichols 

of  twelve   miles  an   hour  was  author-  v.  Ann  Arbor  &  Ypsilanti  R.   R.  Co., 

ized  made  no  difference  with  respect  87  Mich.  361  ;  49  N.  W.  Rep.  538, 


120  ELECTRIC  WIRES  [§  2 


CHAPTER  XI. 

CONDEMNATION    OF   PRIVATE    RIGHTS    FOR   LINES    OF   ELECTRIC 

WIRE. 

§  1.  General  Statutory  Provisions. — The  statutes  of  the  various 
states  give  the  right  to  use  the  public  highways  for  telegraph, 
telephone  and  electric  light  wires,  and  generally  provide  for 
obtaining  the  consent  of  abutting  owners.  Provision  is  also 
made  for  condemning  private  lands,  and  for  ascertaining  and 
paying  the  damages  suffered  by  the  owners  of  abutting  lands 
who  withhold  their  consent,  but  it  seems  that  no  statutes  have 
yet  been  passed  providing  for  the  condemnation  of  the  rights  of 
owners  of  adjacent  land  for  the  use  of  poles  in  the  streets  for 
electric  railways,  and  such  statutes  will  only  be  necessary  when 
it  is  determined  that  their  rights  are  affected  by  the  use  of  the 
streets  for  that  purpose. 

§  2.  Statutes  of  Some  of  the  States. — It  would  be  beyond  the 
scope  of  this  discussion  to  quote  in  detail  the  provisions  of  the 
statutes  of  all  the  states  on  this  subject,  but  it  may  be  well  to 
refer  to  some  of  them  by  way  of  showing  what  private  rights  are 
recognized  and  what  provision  is  made  for  compensation  to 
abutting  owners. 

In  Ohio,  the  county  commissioners  are  to  appoint  appraisers  to 
assess  the  damages  of  persons  over  whose  lands  the  lines  shall 
pass  or  on  which  the  posts  or  piers  shall  be  built.' 

In  Massachusetts,  it  is  provided  that  if  property  abutting  on  a 
highway  is  in  any  way  injuriously  affected  or  lessened  in  value, 
whether  by  occupation  of  the  ground  or  air,  or  otherwise,  by  the 
construction  of  telegraph,  telephone,  electric  light  or  electric 
power  lines,  the  owner,  whether  he  is  the  owner  of  the  fee  in 
the  way  or  not,  may  apply  to  the  mayor  or  aldermen,  or  to  the 
selectmen  to  assess  his  damages.^ 

In  Connecticut,  it  is  declared  that  no  telegraph,  telephone  or 
electric  light  company,  or  company  engaged  in  using  electric  wires 
or  conductors  for  any  purpose,  may  exercise  any  power  conferred 
upon  it,  on  or  under  any  highway  or  public  ground,  or  change 
the  location  of  the  same,  without   the  consent  of  the  adjoining 

1  Act  of  July  8,  1847,  Ohio  Rev.  Stat.  1890  (8746).     See  also  (8752),  (3454), 

(345.0.  (3456),  (3459)- 
^  Laws  18S3,  ch.  109,  Gen.  Stat.  INIass.  1884,  ch.  306. 


§  2.]  IN   STREETS   AND   HIGHWAYS  121 

proprietor,  or  in  case  such  consent  cannot  be  obtained,  without 
the  consent  in  writing  of  two  of  the  county  commissioners,  which 
shall  only  be  given  on  hearing  after  the  notice.  The  common 
council  or  selectmen  have  full  direction  and  control  as  to  the  plac- 
ing and  removal  of  wires,  subject  to  an  appeal  to  a  judge  of  the 
Supreme  court,  who  may  appoint  three  commissioners  to  appraise 
damages.' 

In  Illinois,  provision  is  made  for  paying  for  property  taken  or 
injured.''  In  Indiana,  the  power  of  eminent  domain  with  the  writ 
of  assessment  is  given  to  telegraph  and  telephone  companies.' 
In  California,  the  county  court  is  authorized  to  appoint  three  com- 
missioners to  assess  damages." 

In  New  Jersey,  provision  was  made  in  1890,  for  the  appoint- 
ment by  the  circuit  court  of  three  commissioners  to  assess  dam- 
ages to  owners  of  the  soil  of  any  road  or  highway  along  which  a 
telegraph  or  telephone  line  is  to  be  constructed.* 

In  the  Revised  Laws  of  Vermont  there  is  a  provision  that  when, 
in  the  erection  of  a  telegraph  line,  the  owner  or  occupant  of  lands 
or  tenements  sustains  or  is  likely  to  sustain  damage  thereby,  the 
selectmen  of  the  town  shall  appraise  such  damage,  and  the  same 
shall  be  paid  before  the  line  is  erected ;  and  the  decision  of  the 
selectmen  shall  be  final,  notice  being  given  as  provided  in  the 
statute." 

So  also  in  New  Hampshire,  it  is  provided  that  if  any  person 
shall  be  aggrieved  or  damaged  by  the  erection  of  electric  wires 
or  poles,  or  by  the  stretching  of  such  wires,  or  by  the  use  made 
of  the  same,  he  may  apply  to  the  mayor  and  aldermen  or  the 
selectmen  to  assess  the  damages  which  he  claims  are  occasioned 
thereby,  who  shall  give  notice  to  the  proprietors  and  all  others 
interested;  and  after  hearing  all  parties,  may  award  such  damages 
as  may  be  legally  and  justly  due.' 

In  Louisiana,  telegraph  companies  are  given  a  right  of  way 
over  all  lands  owned  by  the  state,  and  over  any  highways  and 
navigable  waters,  but  they  must  so  construct  their  works  as  not 
to  interfere  with,  impede  or  hinder  the  free  use  of  the  highways  or 
navigable  waters  or  drainage  or  natural  servitudes  of  the  land, 
and  no  provision  seems  to  be  made  for  compensation.' 

^  Laws  1SS7,  ch.  33,  Gen.  Stat.  Conn.        ^  Laws  N.  J.  1S90,  ch.  298. 
188S,  §§  3943-54-  *^  Rev.  Laws  Vt.  iSSo,  ^  3637. 

"^  Rev.  Stat.  Ills.,  ch.  134.  '  Laws  N.  H.  1S81,  p.  472,  §  6. 

*  Ind.  R.  S.,  ch.  42,  43,  §§  4162,  4192.        *  Laws,    1855,   109;    Rev.    Laws    La 

*  Act  of  April  22,  1850  Cal.  1870,  §  3760. 


122 


ELECTRIC   WIRES 


[§4. 


§  3.  If  Private  Rights  are  Affected  or  Consent  is  Required  by 
Statute,  Condemnation  is  Necessary. — If  in  any  case  a  new  burden  is 
imposed,  or  a  private  right  of  property  is  affected,  the  right  to 
construct  the  line  can  only  be  obtained  by  the  exercise  of  emi- 
nent domain,  and  if  in  any  case  the  statute  giving  authority  to 
construct  the  line  provides  that  consent  must  first  be  obtained 
or  compensation  made,  this  condition  must  be  fulfilled,  and  the 
act  of  putting  up  the  poles  is  without  authority,  unless  consent 
be  obtained  or  proceedings  be  taken  to  condemn.' 

§  4.  The  Telegraph  and  the  Telephone  are  Public  Uses. — The  tele- 
graph is  a  public  and  not  a  private  use,"  and  statutes  authoriz- 
ing the  condemnation  of  private  property  for  the  construction 
of  a  telegraph  line  are  not  unconstitutional,  and  this  even  though 
the  telegraph  company  is  not  expressly  required  to  serve  all 
alike.  The  same  is  true  of  the  telephone,  which  is  only  another 
form  of  telegraph,'  serving  the  same  general  purpose  with  the 
same  electric  current  and  with  the  same  poles  and  wires,  only 
delivering  the  message  in  a  different  way.  "  They  are,"  says 
Mr.  Justice  Reed  of  New  Jersey  in  a  recent  case,*  "  both  services 

statute  imposed  upon  the  company  the 
duty  of  serving  all  alike,  but  the  court 
said  that  it  had  not  been  established 


There  are  many  other  states  m 
which  no  provision  for  compensation 
to  abutting  owners  is  made. 

For  a  list  of  the  Compilations  of 
American  Statutes  on  the  Telegraph 
and  Telephone,  see  note  to  §  47,  of 
chapter  6,  sufra.  See  also  Thomp- 
son on  Electricity,  chapter  3,  art.  2, 
and  for  an  account  of  the  legislation 
in  every  state  relating  to  the  condem- 
nation of  property  in  connection  with 
various  municipal  franchises,  see  Eco- 
nomic Legislation  of  all  the  States,  or 
the  Law  of  Incorporated  Companies 
operating  under  Municipal  Franchises, 
by  Allen  R.  Foote,  Cincinnati;  Robert 
Clarke  &  Co.,  1892,  Subdivision  III, 
in  the  section  relating  to  each  state. 

1  Broome  v.  N.  Y.  &  N.  J.  Teleph. 
Co.,  42  N.  J.  Eq.  141. 

2  Pierce  v.  Drew,  136  Mass.  75; 
Central  Un.  Teleph.  Co.  v.  Bradbury, 
106  Ind.  i;  5  N.  E.  Rep.  721;  State 
V,  Postal  Teleg.  Co.,  47  Fed.  Rep.  633 ; 
State,  Trenton  &  N.  B.  Turnpike  Co., 
pros.  V.  American  &  European  Com- 
mercial News  Co.,  43  N.  J.  L.  3S1.  In 
this  latter  case  it  was   held  that   the 


as  a  rule  that  in  order  to  render  the 
use  public  so  as  to  give  power  to  take 
private  property,  the  duty  must  be  ex- 
pressly imposed  upon  a  company  to 
serve  all  who  make  reasonable  de- 
mands upon  it.  Citing  Lumbard  v. 
Stearns,  4  Cush.  60 ;  Scudder  v.  Tren- 
ton Del.  Falls  Co.,  Saxt.  694,  729;  Mills 
on  Em.  Dom.,  §§  14,  21.  See  also  as  to 
what  constitutes  a  public  use,  Lewis  on 
Em.  Dom.,  Chapt.  VII,  and  as  to  the 
telegraph,  §  172. 

2  Mr.  Bell's  specification  of  his  claim. 
Telephone  Cases,  126  U.  S.  2;  Attor- 
ney-General v.  Edison  Teleph.  Co.,  6 
Q^  B.  Div.  244;  Chesapeake  &  Poto- 
mac Teleg.  Co.  v.  Bait.  &  Ohio  Teleg. 
Co.,  66  Md.  399;  State,  Duke,  pros.  v. 
Central  N.  J.  Teleph.  Co.,  53  N.  J.  L.  341 ; 
21  Atl.  Rep.  460;  Wisconsin  Teleph. 
Co.  V.  Oshkosh,  62  Wis.  32;  Hockett 
v.  State,  105  Ind.  250;  5  N.  E.  Rep. 
17S. 

*  State,  Duke,  pros.  v.  Central  N.  J- 
Teleph.  Co.,  53  N.  J.  L.  341  (1891). 


§  7-]  IN   STREETS  AND   HIGHWAYS.  1 23 

of  a  public  nature  which  would  permit  the  legislature  to  confer 
the  power  to  condemn  for  each  use." 

§  5.  Right  Acquired  Only  Such  as  is  Necessary. — The  right  acquired 
under  proceedings  for  condemnation  is  only  such  as  is  necessary 
to  put  up  and  maintain  the  poles  and  wires. 

Under  the  statute  of  Illinois  (Rev.  Stat.  47,  Eminent  Domain, 
and  Rev.  Stat.  134,  Telegraphs),  it  has  been  held  that  the  com- 
pany does  not  acquire  a  fee  in  the  strip  of  land  described  in  the 
proceedings,  and  acquires  an  exclusive  use  of  only  such  land  as 
is  occupied  by  the  poles,  besides  a  right  to  enter  and  make 
repairs.  The  company  cannot  cultivate  it  nor  maintain  a  fence 
along  it.  The  landowner  need  not  erect  a  fence  along  the  strip, 
and  is  not  entitled  to  compensation  for  the  expense  of  one.' 

§  6.  Right  of  Way  Over  a  Turnpike  May  be  Condemned  on  Certain 
Conditions. — A  right  of  way  for  a  telegraph  over  a  turnpike  may 
be  taken  on  payment  of  compensation,  and  without  an  express 
grant  of  authority  to  construct  the  line  on  a  turnpike.  The  right 
to  maintain  a  turnpike  is  a  franchise,  and  a  franchise  cannot  be 
condemned  without  express  authority,^  but  it  has  been  held  that 
a  telegraph  line  does  not  materially  affect  the  franchise  of  the 
turnpike  company,  and  that  the  construction  of  a  line  on  a  turn- 
pike needs  no  express  grant,  but,  like  the  crossing  of  one  railroad  by 
another,  is  authorized  by  the  general  power  to  construct  the  line." 

The  petition  to  condemn,  however,  "  should  show  that  the  tele- 
graph company  is  limited  in  its  right  to  erect  poles  to  a  specified 
width  along  the  exterior  line  or  lines  of  the  pike,  so  that  it  may 
appear  that  it  is  not  proposed  to  appropriate  the  franchise  of  the 
turnpike  company,  and  the  order  should  be  equally  definite."  A 
petition  for  "  permission  to  plant  poles  along  the  margin  of  said 
turnpike  in  such  places  along  said  turnpike  road  as  not  to  interfere 
with  the  public  travel  of  said  road,"  was  held  to  be  insufficient." 

§  7.  Failure  to  Agree  as  a  Condition  Precedent  to  Condemnation. — 
The  courts  will  not  exercise  the  power  of  condemnation  unless 
the  applicant  has  made  an  effort  to  purchase,  and  the  petition 
should  allege  the  inability  of  the  parties  to  agree.^  In  a  recent 
case  in  Mississippi,  relating  to  a  telegraph  line,  the  court  held 
that  it  was  enough  if  it  appeared  from  the  record  that  an  effort 

1  Lockie  v.  Mut.  Union  Teleg.  Co.,  '  'Turnpike  Co.  v.  News  Co.,  43  N.  J, 

103111.401(1882).  L.  381. 

'  State,  Trenton   &  N.   B.  Turnpike  *  Ibid,  p.  386. 

Co.  pros.  V.  Am.   &  Eur.  Com.  News  *  Mills  Em.  Dom.,  §  107,  Lewis  Em. 

Co.,  43  N.  J.  L.  381  (18S1).  Dom.  §§  301-304,  357. 


124  ELECTRIC   WIRES  [§9- 

had  been  made  by  the  telegraph  company  to  adjust  the  matter 
by  contract,  and  that  no  answer  to  the  offer  made  had  been 
returned  within  a  reasonable  time.' 

§  8.  Designation  of  Streets  as  a  Condition  Precedent  to  Condemnation. 
— Under  a  statute  giving  authority  to  construct  a  telegraph  line 
"after  application  to  the  legislative  body  of  any  incorporated  city 
or  town  through  which  the  line  may  pass,"  it  has  been  held  in 
New  Jersey  that  a  telephone  (or  telegraph)  company  cannot 
exercise  the  power  of  condemnation  without  having  made  an 
application  for  a  designation  of  the  streets.^ 

§  9.  Requirements  cf  Petition  to  Condemn. — In  this  case  the  statute 
provided  for  a  petition  for  the  appointment  of  commissioners  to 
assess  the  damages  landowners  might  sustain  by  the  erection  of 
the  line  along  the  highway  in  front  of  their  lands,  and  required 
that  a  description  of  the  premises  in  which  the  privilege  of  erect- 
ing poles  is  to  be  exercised  should  be  set  forth  in  the  petition. 
The  Supreme  court  held  that  a  petition  containing  no  informa- 
tion as  to  the  size  and  location  of  the  poles  except  what  was 
furnished  by  some  small  dots  on  a  map  of  the  street,  without  a 
scale,  was  too  indefinite.  The  decision  was  affirmed  on  appeal 
on  this  point'  (no  opinion  being  expressed  on  the  other),  and  the 
court  said  the  petition  should  indicate  the  intended  height  of  the 
poles,  the  number  and  size  of  the  cross  arms  they  will  bear,  and 
the  number  of  wires  they  are  to  sustain.  These  particulars,  the 
court  said,  are  necessary  in  a  case  of  this  kind  to  the  ascertain- 
ment of  the  privilege  or  right  of  way  which  is  to  be  secured. 

1  Louisville,  N.  O.  &  T.  Rj.  Co.  v.  The  case  of  Winter  v.  The  Telephone 
Postal  Cable  Co.,  68  Miss.  So6;  lo  So.  Co.,  ho^vever,  was  decided  after  this 
Rep.  74  (1S91).  opinion   of    the  court  of    errors,  and 

2  Broome  v.  N.  Y.  &  N.  J.  Teleph.  maintained  that  a  designation  of  the 
Co.,  49  N.  J.  L.  624;  Winter  v.  N.  Y.  streets  was  essential  to  give  the  court 
&  N.  J.  Teleph.  Co.,  51  N.  J.  L.  83.  jurisdiction  over  an  application  to  con- 
These  decisions  were  made  in  the  demn.  The  company  had  never  applied 
Supreme  court,  and  when  the  former  for  a  designation,  but  acted  on  a  desig- 
came  before  the  court  of  errors,  this  nation  made  for  another  company, 
court  affirmed  the  judgment  on  an-  which  was  expressly  made  non-assign 
other  ground,  and  said  :  "Our  conclu-  able. 

sion  on   this  point  obviates  the  neces-  ^  New    York  &    New   Jersey   Tele- 

sity  of  expressing  an  opinion  upon  the  phone  Co.  v.  Broome,  50  N.  J.  L.  432. 

other  branch  of  the  case,  upon  which  See   also   Winter    v.    N.    Y.   &   N.   J. 

the  Supreme  court  passed,  and  the  act  Telephone  Co.,  51   N.  J.  L.  83,  on  the 

of  1887  (P.  L.  119)  has  so  changed  the  same  point,  and  Turnpike  Co.  v.  A.  & 

law  that  it  is  not  a  public   utility  that  E.  Commercial  News  Co.,  43  N'.  J.  L. 

we    should    do  so."      N.  Y.  &    N.  J.  381,  in   regard  to  the  petition  to  con- 

Teleph.  Co.  v.  Broome,  50  N.  J.  L,  432.  demn  a  right  of  wav  along  a  turnpike 


§  2.]  IN  STREETS   AND   HIGHWAYS.  12$ 


CHAPTER   XII. 

TELEGRAPHS   ON   POST   ROADS. 

§  1.  Occasion  and  Purposes  of  the  Act  of  Congress  of  July  24,  1866, 
Concerning  Telegraphs  on  Post  Roads. — The  telegraph  was  found 
during  the  civil  war  to  be  of  supreme  importance  as  an  agency 
of  the  government;  and  when  the  unity  of  the  United  States 
had  been  established  by  the  result  of  the  war,  the  importance  of 
binding  the  whole  country  together  by  means  of  the  telegraph 
and  the  railroad  was  the  more  fully  appreciated.  The  govern- 
ment had  already  in  the  midst  of  the  war  provided  for  a  rail- 
road and  a  telegraph  to  extend  from  the  Mississippi  to  the 
Pacific,  under  the  authority  and  control  of  the  United  States. 

In  pursuance  of  the  wise  policy  by  which  this  great  work  was 
undertaken,  and  making  use  of  the  power  to  regulate  commerce 
between  the  states  and  to  maintain  post  roads,  Congress 
enacted  a  law,  in  i866,  giving  telegraph  companies  the  right 
to  extend  their  lines  over  the  public  domain,  and  over  all 
military  or  post  roads  in  the  United  States.  This  act  was 
approved  July  24,  1866,  and  is  entitled,  "An  act  to  aid  in  the 
construction  of  telegraph  lines,  and  to  secure  to  the  government 
the  use  of  the  same  for  postal,  military  and  other  purposes." 
(14  U.  S.  Stat.,  221,  U.  S.  Rev.  Stat.,  §§  5263,  5268.)  It  declares 
that  any  telegraph  company  organized  under  the  laws  of  any  of 
the  states  of  the  Union  shall  have  the  right  to  construct, 
maintain  and  operate  lines  of  telegraph  through  and  over  any 
portion  of  the  public  domain  of  the  United  States,  and  over  and 
along  any  of  the  military  or  post  roads  of  the  United  States 
which  have  been  or  may  hereafter  be  declared  such  by  law,  but 
that  such  lines  of  telegraph  shall  be  so  constructed  and  main- 
tained as  not  to  interfere  with  ordinary  travel ;  and  it  is  provided 
that  before  any  telegraph  company  shall  exercise  any  of  the 
powers  or  privileges  conferred  by  the  act,  the  company  shall  file 
their  written  acceptance  with  the  Postmaster-General  of  the 
restrictions  and  obligations  required  by  law. 

§  2.  Decision  of  the  Supreme  Court  Sustaining  and  Construing  the 
Act. — The  act  came  before  the  Supreme  Court  of  the  United 
States  in  1877,  and  was  broadly  sustained,  and  was  so  construed 
as  to  give  it  the  fullest  effect  for  the  purpose  of  maintaining  the 


126  ELECTRIC  WIRES  [§  4. 

freest  intercourse  between  the  states,  and  preventing  any  inter- 
ference with  the  telegraph  by  state  governments  or  by  corpora- 
tions or  individuals. 

The  case  was  Pensacola  Telegraph  Co.  v.  Western  Union  Tele- 
graph Co'  on  appeal  from  the  decision  of  Judge  Woods,  in  the 
United  States  Circuit  court  for  the  district  of  Florida." 

An  act  of  the  legislature  of  Florida  purported  to  give  the 
complainant  the  exclusive  right  to  erect  telegraph  lines  in  certain 
counties  in  the  state,  and  Judge  Woods  held  that,  so  far  as  the 
act  purported  to  give  to  any  company  the  exclusive  privilege  of 
using  a  post  road,  it  was  in  conflict  with  the  act  of  Congress, 
and  therefore  void.  This  decision  was  sustained  by  the  Supreme 
court. 

§  3.  What  the  Term  Post  Roads  Includes. — The  act  is  not  con- 
fined to  the  public  domain  and  to  military  and  post  roads 
belonging  to  the  United  States,'  but  extends  to  all  post  roads, 
and  applies  to  public  highways  opened  under  the  laws  of  the  sev- 
eral states  and  territories  upon  which  the  mails  are  carried." 

By  a  subsequent  statute  (1872,  Rev.  Stat.  U.  S.,  §  3964),  all 
railroads  and  all  letter  carrier  routes  in  any  city  or  town  were 
expressly  declared  to  be  post  roads,  and  by  the  act  of  March  i, 
1884  (23  U.  S.  Stat.  3),  all  public  roads  and  highways  were 
declared  to  be  post  routes,  and  since  the  decision  of  the  Supreme 
court  in  the  case  of  the  Pensacola  Telegraph  Company  there 
has  been  no  question  that  the  act  of  July  24,  1866,  applies 
generally  to  all  public  highways  of  every  kind  over  which  the 
mails  are  carried,  or  which  are  declared  by  Congress  to  be  post 
roads. 

§  4.  The  Scope  and  Effect  of  the  Act  as  Declared  by  the  Supreme 
Court— Equal  Privileges  Secured  to  all  Telegraph  Companies.— The 
purpose  of  the  act  as  declared  by  the  Supreme  court  in  that  case, 
and  generally  recognized  ever  since,  was  to  facilitate  communica- 
tion by  telegraph  throughout  the  country,  and  to  prevent 
restriction  upon  this  kind  of  interstate  commerce  by  the  states 
or  individuals.  Chief  Justice  Waite,  delivering  the  opinion  of 
the  court  in  that  case,  said  : 

"  The  statute  of  July  24,  1866,  in  effect,  amounts  to  a  prohibi- 
tion of  all  state  monopoHes  in  this  particular.     It  substantially 

1  96  U.  S.  I.  Teleg.  Co.,  2  Wklj.  N.  C.  455 ;  33  Leg. 

2  2  Woods  C.C.  643  (1875).  Intel.  129. 

'  Although  it  was  so  held  in  an  early  *  Pensacola  Teleg.  Co.  v.  Western 
case  in  Pennsylvania.     Phila.  v.  W.  U.     Union  Teleg.  Co.,  96  U.  S.  i. 


§  5-]  !>«'   STREETS   AND   HIGHWAYS.  12/ 

declares,  in  the  interest  of  commerce  and  the  convenient  trans- 
mission of  intelligence  from  place  to  place  by  the  government  of 
the  United  States  and  its  citizens,  that  the  erection  of  telegraph 
lines  shall,  so  far  as  state  interference  is  concerned,  be  free  to  all 
who  will  submit  to  the  conditions  imposed  by  Congress,  and 
that  corporations  organized  under  the  laws  of  one  state  for  con- 
structing and  operating  telegraph  lines,  shall  not  be  excluded  by 
another  from  prosecuting  their  business  within  its  jurisdiction, 
if  they  accept  the  terms  proposed  by  the  national  government 
for  this  national  privilege. 

"To  this  extent,  certainly,  the  statute  is  a  legitimate  regulation 
of  commercial  intercourse  among  the  states,  and  is  appropriate 
legislation  to  carry  into  execution  the  powers  of  Congress  over 
the  postal  service.  It  gives  no  foreign  corporation  the  right  to 
enter  upon  private  property  without  the  consent  of  the  owner, 
and  erect  the  necessary  structures  for  its  business  ;  but  it  does 
provide  that,  whenever  the  consent  of  the  owner  is  obtained,  no 
state  legislation  shall  prevent  the  occupation  of  post  roads  for 
telegraph  purposes  by  such  corporations  as  are  willing  to  avail 
themselves  of  its  privileges." 

The  act,  therefore,  provides  that  all  post  roads  shall  be  kept 
open  for  the  use  of  all  telegraph  companies  who  shall  accept  the 
terms  of  the  act,  and  prohibits  interference  with  this  privilege  by 
state  legislation,  or  by  the  action  of  individuals.  A  state  legis- 
lature cannot  give  to  any  one  telegraph  company  an  exclusive 
right  to  use  a  post  road  for  a  telegraph  line.' 

§  6.  Railroad  and  Turnpike  Companies  Cannot  Give  Exclusive 
Rights  to  Use  Their  Rights  of  "Way  for  Telegraph  Purposes. — As  this 
is  true  of  the  state  with  respect  to  all  post  roads,  so  also,  it  is 
true  of  the  corporations  or  individuals  owning  the  right  of  way  of 

'  Pensacola   Teleg.    Co.  v.   Western  construct  a  line  of  telegraph  between 

Union  Teleg.  Co.,  96  U.  S.  I  ;  2  Woods  any    two    points    connected    by    post 

C.  C.  463 ;  West.  Union   Teleg.  Co.  v.  roads.      There  is,  however,  an   inter- 

B.  &  O.  Teleg.  &  R.  R.   Co.,    19  Fed.  esting  decision  in   California,  made  in 

Rep.  660  (1884)  ;  West.   Union  Teleg.  1863,  sustaining,  on  grounds  of  public 

Co.  V.  Am.  Union  Teleg.   Co.,  9  Biss.  policy,  the   validity   of   a   very  broad 

72  (1879);   W.  U.  Teleg.   Co.  v.  Bur-  grant  of  an  exclusive  privilege  of  build- 

lington  &  S.  Ry.  Co.,   n  Fed.  Rep.  i  ;  ing  and  operating  a  line  of  telegraph 

West.  Union  Teleg.  Co.  v.  Am.  Union  from  San  Francisco  to  Marysville,  by 

Teleg.  Co.,  65  Ga.  160;  38  Am.  Rep.  781.  way  of  San  Jose,  Stockton  and   Sacra- 

Since  the  passage  of  the  act  of  Con-  mento  City,  for  fifteen  years.     It  was 

gress  of   July  24,1866,  it  is  of  course  the  grant  made  to  Allen  &  Burnham  on 

impossible  for  a  state  to  grant  an  ex-  May  3,  1852.     California  St.  Teleg.  Co. 

elusive  right  to  any  one  company  to  v.  Alta  Teleg.  Co.,  22  Cal.  398  (1863). 


128  ELECTRIC  WIRES  [§  5- 

a  turnpike  or  a  railroad.  Neither  a  railroad  nor  a  turnpike  com- 
pany can  give  a  telegraph  company  an  exclusive  right  to  use  its 
road  which  shall  be  of  any  avail  against  a  company  which  has 
accepted  the  provisions  of  the  act  of  Congress.  In  Western 
Union  Telegraph  Co.  v.  American  Uttion  Telegraph  Co.^  it  was 
held  that  a  railroad  company  cannot  grant  to  a  telegraph  com- 
pany the  sole  right  to  construct  a  line  over  its  right  of  way,  so 
as  to  exclude  other  companies  which  have  complied  with  the 
act  of  Congress  and  which  do  not  interfere  with  the  use  of  its 
line  of  railroad,  and  it  was  held  that  the  railroad  company  hav- 
ing given  its  assent  to  the  new  line  of  telegraph,  the  company 
owning  the  old  Hne  was  not  entitled  to  an  injunction,  even 
though  it  had  an  agreement  with  the  railroad  company  for  the 
exclusive  use. 

In  Western  Union  Telegraph  Co.  v.  Burlington  and  South  West- 
ern Railway  Co.^  the  court  said,  it  is  not  competent  for  a  rail- 
road company  to  grant  a  telegraph  company  the  exclusive  right 
to  establish  its  lines  of  telegraph  along  its  right  of  way,  such  con- 
tracts  being  in  restraint  of  trade  and  contrary  to  public  policy, 
and  the  court  referred  to  the  statute  and  cited  the  decision  of 
the  Supreme  court  and  other  cases. 

So  also  in  Western  Union  Telegraph  Co.  v.  B.  &  O.  Telegraph 
Co.^  the  court  said  that  a  railroad  is,  under  the  statute,  a  post 
road,  and  therefore  the  act  of  Congress  of  July  24,  1866,  giving 
to  all  telegraph  companies  alike  the  right  to  construct  and 
operate  lines  along  all  post  roads  of  the  United  States,  is 
paramount  over  any  agreement  made  by  a  railroad  company 
securing  a  telegraph  company  the  exclusive  use  of  the  line  for 
its  wires. 

There  are  other  cases  in  which  the  same  rule  is  maintained  in 
which  the  decision  is  based  also  upon  the  principle  that  such 
exclusive  contracts  tend  to  stifle  competition  and  are  contrary  to 
public    policy,   without  regard  to    the  Federal   statute.     These 

1 9  Biss.  72 ;  7th    CiKCuit   1879,  Har-  company    and   a   telegraph    company 

Ian    T.  giving  exclusive  right  of  way  for  the 

2  II  Fed.  Rep.  i ;  3  McCrary  130;  U.  construction  of  its  line,  does  not  con- 

S.  circuit  court  D.  Iowa  (1882).  cern  the  duty  of  railroad  companies  to 

3 19   Fed.    Rep.   660;   U.   S.    circuit  observe   equality,    but    a    contract   to 

court   S.  D.   New  York,  Wallace,  J.,  deliver  material  anywhere   along  the 

(1884).  line    for    one    company    and    not   to 

In  Teleg.  Co.  v.  Teleg.  Co.,  10  deliver  for  others,  except  at  stations,  is 
Cine.  Week.  Bull.  201,  it  was  held  contrary  to  the  duty  of  common  ear- 
that  an  agreement  between  a  railroad  riers.  and  void  as  against  public  policy 


§  7-]  IN   STREETS   AND    HIGHWAYS.  129 

cases  will  be  referred  to  in  the  chapter  on  telegraphs  in  relation 
to  railroads.' 

§  6.  Practical  Difficulties — Question  of  the  Interference  of  one  Line 
With  the  Other. — There  may  be  practical  difficulties  in  allowing 
several  telegraph  companies  to  use  the  same  railroad  for  their 
lines,  for  the  reason  that  the  use  by  one,  or  at  all  events  by  more 
than  one,  may  interfere  with  the  full  and  efficient  use  of  the 
right  of  way  by  another.  A  telegraph  line  can  often  be  econom- 
ically operated  only  in  connection  with  the  use  of  it  by  the  rail- 
road company  itself,  and  this  use  is  certainly  not  what  is  con- 
templated by  the  statute.  And  again,  there  may  be  facilities  at 
the  railroad  stations  for  the  use  of  but  one  line,  and  these  can 
hardly  be  within  the  scope  of  the  statute.  It  may  even  be  that 
several  distinct  lines  of  wire  could  not  be  operated  without 
interfering  with  one  another  along  the  narrow  strip  of  land 
available  for  them,  and  the  cases  do  not  go  so  far  as  to  hold  that 
any  company  has  a  right  to  construct  a  line  so  as  to  interfere 
with  the  proper  working  of  an  existing  line.  The  same  princi- 
ple would  no  doubt  apply  to  this  as  has  been  applied  to  the  use 
of  the  right  of  way  itself,  namely,  that  the  statute  does  not  give 
the  right  to  injure  property  without  compensation.  The  ques- 
tion of  interference  between  diiTerent  telegraph  lines  does  not 
seem  to  have  been  much  discussed  by  the  courts,^  and  we  can 
only  apply  the  principles  on  which  the  lines  are  allowed  to  be 
erected  on  the  right  of  way  of  the  railroad  companies. 

§  7.  The  Rights  Conferred  are  Public  and  Not  Private  Rights 
— The  Latter  Can  Only  be  Taken  by  Consent. — The  effect  of  the 
statute,  according  to  the  decisions  of  the  courts,  is  to  authorize 
telegraph  companies  to  use  public  highways  of  every  kind  over 
which  the  mails  are  carried  or  which  are  declared  by  law  to  be 
post  roads ;  and  so  far  as  these  roads  are  public  highways  for 
the  transportation  of  the  mails,  they  are  subject  to  be  used  for 

^  Telegraphs     &    Railroads,    infra,  in    operation,  would   not   disturb   the 

Chapt.  XIII.  possession  or  materially  obstruct  the 

'^  In  Western  Union  Teleg.  Co.  v.  operation  of  the  lines  of  that  company. 
American  Union  Teleg.  Co.,  9  Biss.  In  West.  Union  Teleg.  Co.  v.  A.  & 
72  (1879),  the  court  in  laying  down  P.  Teleg.  Co.,  7  Biss.  367,  proceedings 
the  rule  that  a  right  of  way  could  in  a  state  court  by  a  telegraph  company 
not  be  given  to  one  company  so  to  condemn  the  right  of  way  of  an- 
as to  exclude  others,  limited  these  other  telegraph  company  over  a  rail- 
others  to  such  as  had  accepted  the  road,  while  the  railroad  was  in  the 
provisions  of  the  act  of  1S66,  and  hands  of  a  receiver,  were  held  to  be 
whose  lines,  when  constructed  and  put  inoperative  and  void. 
E.  W.— 9 


130  ELECTRIC   WIRES  [§  8. 

telegraph  purposes,  and  for  all  companies  alike,  whether  chartered 
by  a  state  or  the  United  States.  But  the  statute  docs  not  affect 
private  rights,  nor  give  the  power  to  take  or  injure  private 
property  without  compensation.  So  far  as  there  is  a  public  right 
of  passage,  the  way  is  open  to  the  use  of  the  telegraph  com- 
panies, but  so  far  as  there  is  private  property,  this  must  be 
acquired  by  consent  or  by  condemnation. 

The  act  of  Congress  does  not  provide  for  condemnation.  It 
has  no  reference  whatever  to  private  rights,  except  so  far  as  to 
provide  that  exclusive  privileges  must  not  be  granted,  but  that  if 
a  right  of  way  is  given  it  shall  not  confer  an  exclusive  right  to  the 
use  of  the  public  highway,  whether  it  be  a  road,  a  turnpike  or  a 
railway. 

In  the  case  of  the  Pensacola  Telegraph  Co.  above  referred  to,' 
the  Chief  Justice  of  the  Supreme  court  said :  The  act  "  gives  no 
foreign  corporation  the  right  to  enter  upon  private  property 
without  the  consent  of  the  owner,  and  erect  the  necessary  struc- 
tures for  its  business ;  but  it  does  provide  that  whenever 
the  consent  of  the  owner  is  obtained,  no  state  legislation  shall 
prevent  the  occupation  of  post  roads  for  telegraph  purposes  by 
such  corporations  as  are  willing  to  avail  themselves  of  its  privi- 
leges." 

§  8.  The  Same — The  Act  of  Congress  Gives  no  Power  to  Condemn.  — 
In  Atlantic  &  Pacific  Telegraph  Co.  v.  Chicago,  R.  I.  &  P.  R.  R. 
Co. ^' in  the  United  States  Circuit  court,  Drummond,  J.,  said: 
"  The  rights  of  a  railroad  company  over  its  roadway  are  different 
from  those  of  the  public  over  a  highway.  Over  the  latter,  any 
one  has  a  right  to  travel,  subject  only  to  tolls,  but  the  railroad 
company  has  exclusive  possession  of  its  own  cars,  etc. 

**  The  construction  of  the  telegraph  line  involves  the  actual  tak- 
ing of  the  property  of  the  company,  and  Congress  has  no  power 
to  authorize  this  to  be  done  without  making  compensation." 
And  with  this,  Mr.  Justice  Harlan  agreed  in  a  later  case  in  the 
same  circuit.^ 

So  also  in  a  case  in  Tennessee,^  in  which  a  New  York  telegraph 
company  applied  for  leave  to  condemn  a  right  of  way  along  a 
railroad  in  Tennessee,  it  was  held  that  the  grant  of  the  privilege  to 
condemn  rests  wholly  with  the  state,  that  the  laws  of  Tennessee 

1  Pensacola  Teleg.  Co.  V.  West.  Union  Teleg.  Co.,  96  U.  S.  i. 

*6  Biss.  158. 

'  West.  Union  Teleg.  Co.  v.  Am.  Union  Teleg.  Co.,  9  Biss.  72  (1879). 

♦  5  Cincinnati  Week.  Bull.  &  O.  L.  J.  858;  28  Meyers  Fed.  Dec,  §  31. 


§  9-]  IN   STREETS  AND   HIGHWAYS.  I3I 

confer  no  privileges  on  any  corporation  except  such  as  are 
organized  in  that  state,  that  the  United  States  statutes  confer 
no  power  on  foreign  corporations,  and  that  section  5263  of  the 
Revised  Statutes  gives  only  the  Federal  permission  to  telegraph 
companies  to  use  railroads,  and  that  they  must  first  acquire  a 
right  of  way  by  purchase. 

Judge  Wallace,  in  a  case  in  the  United  States  Circuit  court  for 
the  southern  district  of  New  York,'  referring  to  Pensacola  Tele- 
graph Company^  v.  Western  Union  Telegraph  Company,  said :  "It 
was  not  held  in  that  case  that  a  telegraph  company  could  acquire 
a  right  of  way  over  a  railroad  without  the  consent  of  the  owner, 
or  even  that  the  act  gave  to  telegraph  companies  the  power  to 
acquire  such  rights  of  way  by  compulsory  proceedings  upon  due 
compensation,  and  the  contrary  was  plainly  intimated,  but  the 
act  was  considered  and  expounded  as  intended,  and  effectual  to 
deny  to  any  one  telegraph  company  the  right  to  acquire  any  such 
easement  in  the  lands  of  a  railroad  for  telegraph  facilities  as 
would  exclude  other  companies  from  obtaining  like  privileges, 
and  as  a  declaration  by  Congress  of  a  policy  in  the  interests  of 
the  public  and  of  the  government,  which  was  reasonable  and 
lawful."  A  similar  view  of  the  statute  was  expressed  by  the 
Supreme  Court  of  the  United  States  in  a  recent  case,  and  Mr. 
Justice  Miller  referred  to  the  statute  as  a  permissive  statute, 
which  did  not  have  the  effect  of  exempting  a  telegraph  company 
from  taxation  by  the  state.' 

§  9.  Compensatioii  Must  be  Made  for  Use  of  Eaibroad  or  Turnpike 
Although  a  Post  Road. — It  has  been  distinctly  held  in  Georgia,* 
that  an  act  authorizing  a  telegraph  company  to  erect  a  line  upon 
the  right  of  way  of  a  railroad  company  without  compensation, 
is  unconstitutional,  and  there  are  many  cases  in  which  it  is  held 
that  a  line  of  telegraph  is  an  additional  burden  upon  the 
land  condemned  for  the  right  of  way  of  a  railroad,  and  that 
compensation  must  be  made  to  the  owner  of  the  soil,  even 
though  the  telegraph  company  has  complied  with  the  act  of 
Congress.^ 

1  West.  Union  Teleg.  Co.  v.  B.  &  O.  Co.  v.  Rich,  19  Kan.  517 ;  27  Am.  Rep. 

Teleg.  Co.,  19  Fed.  Rep.  660  (1884).  159(1878). 

^  96  U.  S.  I.  ♦  South  Western  R.  R.  Co.  v.  South- 

^  Western  Union  Teleg.  Co.  v.  Mas-  ern  &  Atl.  Teleg.  Co.,  46  Ga.  43;   12 

sachusetts,  125  U.  S.  530  (1887).  Am.  Rep.  585  (1872). 

See  also  S.  W.R.R,  Co.  V.  Southern  ^  Km.   Teleg.    and    Teleph.    Co.    v. 

&  Atl.  Teleg.  Co.,  46   Ga.  43 ;   12  Am.  Pearce,  71  Md.  535  ;   18  Atl.  Rep.  910; 

Rep.  585  (1872);  Western  Union  Teleg.  {,sub  nom.  A.  T.  &  T.  Co.  v.  Smith),  i 


132  ELECTRIC   WIRES  [§  II. 

We  need  not  stop  at  this  point  to  consider  whether  the  telegraph 
is  in  fact  an  additional  burden  on  the  land  taken  for  a  railroad. 
There  is  a  good  deal  of  difference  of  opinion  on  the  subject,  but 
where  it  is  so  held,  then  the  fact  that  the  railroad  is  a  post  road, 
does  not  relieve  the  telegraph  company  of  the  duty  of  making 
compensation.  The  same  rule  applies  to  ordinary  highways, 
and  if  in  fact  the  erection  of  a  telegraph  line  along  a  highway  is 
a  new  burden  upon  the  soil,  compensation  must  be  made  to  the 
owner,  even  though  the  highway  is  a  post  road  and  the  company 
has  complied  with  the  act  of  Congress.' 

§  10.  Does  the  Statute  Imply  That  Telegraph  Is  a  Highway  Use  and 
Not  a  New  Burden  on  the  Land? — It  has,  indeed,  been  suggested 
that  the  principle  on  which  the  act  of  Congress  was  based  pre- 
cludes the  idea  that  the  telegraph  is  a  new  burden  upon  the  land 
of  a  highway.  The  act  assumes  that  the  telegraph  is  one  of  the 
proper  uses  of  the  highway,  and  only  another  mode  of  using  the 
public  rights  therein.  It  deals  only  with  public  rights,  and 
assumes  that  no  private  rights  are  affected  by  the  use  of  the 
highway  for  the  telegraph,  and  it  was  held  in  the  District  of 
Columbia  that  the  act  gave  the  right  to  erect  lines  in  the  streets 
of  Washington,  and  that  there  was  no  additional  burden  upon  the 
land  for  which  compensation  need  be  made.* 

On  the  other  hand,  the  case  decided  by  Judge  Drummond  and 
reported  in  6  Bissell,^  was  used  as  an  argument  on  the  other  side 
of  the  question  by  the  dissenting  judges  in  Pierce  v.  Drew"  in 
Massachusetts. 

§  11.  Telegraphs  on  Post  Roads  are  Subject  to  Municipal  Control. — 
The  act  of  Congress  has  not  the  effect  of  putting  telegraph  com- 
panies beyond  municipal  control  with  respect  to  the  use  of  the 
streets.  When  the  legislature  of  New  York  gave  authority  to 
commissioners  to  cause  telegraph  wires  in  large  cities  to  be 
placed  underground.  Judge  Wallace  allowed  a  temporary  injunc- 
tion to  stand,  so  far  as  the  wires  strung  along  the  elevated  rail- 
roads were  concerned,  on  the  ground  that  it  was  doubtful 
whether  the  state  statutes  could  deprive  the  complainant  of  the 

Am.  R.  R.  Corp.  Rep.  73  (1889);  West-  nor  even  claimed  to  be  a  justification 

ern  Union  Teleg.  Co.  v.  Rich,  19  Kan.  for  not  making  compensation. 

517.     See  Chapt.  XIII,  §  3, /w/ra.  ^  j^ewett  v.  West.  Union  Teleg.  Co., 

1  This    appears     negatively     rather  4  Mackaj  (D.  C.)  424  (18S6). 

than  affirmatively   from  the  decisions,  '  Atl.  &  Pac.  Teleg.   Co.  v.  Chicago 

in  that  when   an   additional   servitude  R.  I.  &  P.  R.  R.  Co.,  6  Biss.  158. 

is  recognized  the  statute  is  not  allowed  *  Pierce  v.  Drew,  136  Mass.  75. 


§  12.]  IN   STREETS   AND   HIGHWAYS.  133 

use  of  a  post  road,'  but  it  was  afterwards  held  by  the  New  York 
court  of  appeals,  that  the  acts  of  Congress  in  regard  to  telegraph 
companies  and  post  roads  did  not  deprive  the  state  of  its  control 
of  its  highways,  and  its  right  to  regulate  them  under  the  police 
power,  and  that  the  acts  providing  for  the  use  of  post  roads  are 
perfectly  satisfied  by  the  permission  given  by  the  state  legis- 
lation to  put  the  wires  in  subways.'' 

§  12.  Telegraphs  or  Post  Roads  are  Subject  to  State  Taxation. — The 
act  of  Congress  does  not  exempt  telegraph  companies  constructed 
under  it  from  state  taxation.  This  question  arose  in  a  recent 
case  in  the  United  States  Supreme  Court,'  and  Mr.  Justice  Miller, 
referring  to  the  act  of  July  24,  1S66,  said  : 

"  This,  however,  is  merely  a  permissive  statute,  and  there  is  no 
expression  in  it  which  impHes  that  this  permission  to  extend  its 
lines  along  roads  not  built  or  owned  by  the  Federal  government, 
carries  with  it  any  exemption  from  the  ordinary  burdens  of  taxa- 
tion. While  the  state  could  not  interfere  by  any  specific  statute, 
to  prevent  a  corporation  from  placing  its  lines  along  these  post 
roads,  or  stop  the  use  of  them  after  they  were  placed  there, 
nevertheless  the  company  receiving  the  benefit  of  the  laws  of  the 
state  for  the  protection  of  its  property  and  rights,  is  liable  to  be 
taxed  upon  its  real  or  personal  property,  as  any  other  person 
would  be." 

1  Western  Union  Teleg.  Co.  v.  New  York,  38  Fed.  Rep.  552,  1889. 

2  American  Rapid  Teleg.  Co.  v.  Hess,  125  N.  Y.  641;  26  Nor.  East.  Rep.  919. 
See  also  the  discussion  of  this  subject  and  the  cases  cited  in  Chapter  VI, 
§  7,  supra. 

*  Western  Union  Teleg.  Co.  v.  Massachusetts,  125  U.  S.  530-549. 


134 


ELECTRIC   WIRES  [§  I. 


CHAPTER  XIII. 

TELEGRAPH   LINES   ALONG    RAILROADS. 

§  1.  Contracts  for  Exclusive  Use  of  Right  of  Way  by  Telegraph, 
Companies  Void  on  Grounds  of  Public  Policy. — We  have  already  seen 
that  under  the  act  of  Congress,  approved  July  24,  1866,  any  tele- 
graph company  has  the  right  to  erect  and  maintain  a  line  along 
any  of  the  post  roads  of  the  United  States,  and  that  it  has  been 
held  that  railroads  being  post  roads,  neither  the  states  nor  the 
railroad  companies  can  interfere  with  this  right  by  granting  ex- 
clusive privileges  to  any  one  telegraph  company.'  It  has  also 
been  held  in  many  cases  that,  independently  of  the  Federal  statute, 
it  is  not  competent  for  a  railroad  company  to  grant  to  a  tele- 
graph company  the  exclusive  right  to  establish  lines  of  telegraph 
along  its  right  of  way,  because  such  a  contract  is  in  restraint  of 
trade,  tends  to  stifle  competition,  and  is  contrary  to  public  policy. 
It  was  so  held  in  a  case  in  Georgia,  in  which  the  contract  had 
been  made  before  the  passage  of  the  act  of  July  24,  1866,  but  the 
court  referred  to  §  2750  of  the  code  of  Georgia,  relating  to 
monopolies.^ 

So  also  in  Gilbert's  Case'  it  was  held  by  the  New  York  court 
of  appeals,  that  a  telegraph  being  a  public  use,  a  railroad  com- 
pany cannot  make  an  exclusive  contract  with  a  telegraph  com- 
pany so  as  to  prevent  another  company  from  obtaining  a  right  of 
way  over  the  railroad  in  such  a  manner  as  not  to  interfere  with 
travel,  and  a  similar  decision  was  made  in  Alabama  in  i875-* 

In  Georgia,  it  was  suggested  that  a  contract  for  exclusive  use 
was  beyond  the  power  of  the  railroad  company,  because  it  had 
condemned  the  land  only  for  railroad  purposes,  and  these  did 
not  include  exclusive  rights  for  telegraph  purposes  against  the 
public  interest.' 

So  also   in  a  case  in  the  United   States  Circuit  court  for  the 

»  Chapter  XII,  ^'^i  4  and  5. 

2  Western  Union  Teleg.  Co,  v.  Am.  Union  Teleg.  Co.,  65  Ga.  160  (1880). 

^  70  N.  Y.  361. 

♦  New  Orleans,  Mobile  &  Texas  R.  R.  Co.  v.  South  &  Atl.  Teleg.  Co.,  53 
Ala.  211. 

5  South  Western  R.  R.  Co.  v.  Southern  &  Atlantic  Teleg.  Co.,  46  Ga.  43;  12 
Am.  Rep.  585  (1872). 


I  2.]  IN   STREETS   AND    HIGHWAYS.  135 

western  district  of  Missouri,'  in  which  the  contract  was  made 
before  the  passage  of  the  act  of  July  24,  1866,  the  court  held 
that  an  exclusive  contract  was  invalid  in  that  it  took  away  the 
state's  right  of  eminent  domain.  The  railroad  company  in  giv- 
ing an  exclusive  right  seek  to  add  an  unlimited  franchise  to  one 
that  is  itself  limited,  and  this  they  are  powerless  to  do.  The 
contract  was  also  held  to  be  ultra  vires.  Whether  it  was 
affected  by  the  act  of  1866,  passed  afterwards,  was  not  decided. 
In  another  case  in  the  same  circuit,'  Judge  McCrary,  while  grant- 
ing an  injunction  against  an  ejectment  before  a  suit  brought  to 
declare  the  contract  void,  said :  "  I  have  little  doubt  that  the 
clause  here  referred  to  is  void."  It  was  the  case  of  a  railroad 
company  agreeing  with  a  telegraph  company  for  the  construction 
of  a  line,  and  to  give  it  the  exclusive  use  of  it  for  commercial 
and  general  business,  the  telegraph  company  to  transact  the  tele- 
graph business  of  the  railroad  company.  Mr.  Justice  Woods, 
in  a  case  in  the  seventh  circuit,  in  1885,'  referred  to  the  doctrine 
as  "  now  well  established  that  an  exclusive  privilege  to  do  tele- 
graphing upon  or  along  any  railroad  company  cannot  be  given  to 
any  person  or  corporation."  It  was  held  otherwise,  however,  in  an 
earlier  case  in  Illinois."  Many  of  the  cases  decided  with  reference 
to  the  Federal  statute  relating  to  post  roads  also  declare  that 
independently  of  that  act,  exclusive  contracts  between  railroad 
companies  and  telegraph  companies  for  the  use  of  the  right  of 
way  are  contrary  to  public  policy,  because  they  tend  to  monopoly 
and  are  in  restraint  of  trade.^ 

§  2.  Modifications  and  Exceptions. — There  is  a  limit,  however,  to 
be  placed  on  the  general  language  of  this  proposition,  whether 
it  be  an  expression  of  general  policy  or  the  interpretation  of  a 
statute.  There  can  be  no  reasonable  doubt  that  such  exclusive 
contract  as  is  necessary  to  the  proper  operation  of  the  lines  and 
of  the  railroad  is  permissible,  and  that  the  prohibition  is  only 

^West.   Union   Teleg.   Co.  v.  Cent,  graph  companies  upon  a  statute  declar- 

Union  Co.,  3  Fed.  Rep.  417.  ing  that  no  corporation  should  contract 

2  West.  Union  Teleg.  Co.  v.  St.  with  a  landowner  for  the  exclusive 
Joseph  &  W.  R.  R.  Co.,  i  McCrary  use  of  his  land.  West.  Union  Teleg. 
569;   3  Fed.  Rep.  430.  Co.  v.  B.  &  O.  Teleg.  Co.,  22  Fed.  Rep. 

3  West.  Union  Teleg.  Co.  v.  B.  &  O.  133  (1884) ;  Sabin,  J.,  Texas  Rev.  Stat., 
Teleg.  Co.,  23  Fed.  Rep.  12.  See  also  B.  art.  624. 

&  O.  Teleg.  Co.  v.  West.  Union  Teleg.  *  West.  Union  Teleg.  Co.  v.  Chicago, 

Co.,  24  Fed.  Rep.  319.  A  similar  decision  etc.,  R.  R.  Co.,  86  111.  246  (1879). 

was  made  in  the  United  States  Circuit  ^  See  Chapter  XII,  §§  4  and  5,  supra 

court  in  Texas   with    regard   to   tele-  and  cases  cited. 


136  ELECTRIC   WIRES  [§  3- 

against  exclusive  privileges  for  the  purpose  of  shutting  out  rival 

lines.' 

It  has  been  held,  also,  that  in  a  contract  between  a  railroad 
company  and  a  telegraph  company,  a  restriction  binding  the  rail- 
road company  not  to  construct  another  telegraph  line  along  its 
rio-ht  of  way,  is  not  void  as  against  public  policy,  because  if  the 
needs  of  the  public  should  demand  another  line  it  could  be  con- 
structed along  another  railroad  or  along  public  highways,  or  even 
on  land  condemned  for  the  purpose.^ 

S3.  Is  a  Telegraph  Line  a  New  Burden  Upon  the  Land  Taken  for  a 
Railroad? — When  land  is  condemned  for  the  purpose  of  a  rail- 
road track,  it  is  ordinarily  only  the  right  of  way  for  railroad  pur- 
poses that  is  taken,  and  the  question  has  arisen  whether  the  same 
land  may  be  used  with  the  consent  of  the  railroad  company  for 
the  purposes  of  a  line  of  telegraph  intended  for  general  business. 

Railroads  are  in  a  certain  sense  public  highways,  and  the  use 
for  which  they  appropriate  lands  is  a  highway  use/  Whether  a 
telegraph  is  an  additional  burden  may  depend  therefore  on  the 
question  whether  such  a  use  is  within  the  highway  use  for  which 
the  land  was  taken.  A  telegraph  line  has  been  held  by  some 
courts  to  be  a  proper  use  of  an  ordinary  street  or  highway,^  and 
in  other  courts  it  has  been  held  to  be  a  new  use  and  an  additional 
burden.'     Although  a  railroad  is  a  public  highway  it  is  not  open 

1  See  Chapter  XII,  §  6,  and  cases  was  not  exclusive,  but  that  the  rail- 
cited.  road  company  might   maintain  a  line 

2  West.  Union  Teleg.  Co.  v.  Atl.  &  for  its  own  use,  or  allow  a  telegraph 
Pac.  Teleg.  Co.,  7  Biss.  367.  company  to  use  it  for  general  business 

In  B.  &  O.  Teleg.  Co.  v.  Morgan's  although  it  had  granted  another  tele- 
La.  &  Tex.  Teleg.  Co.,  37  La.  Ann.  graph  company  the  right  to  place 
833,  there  were  proceedings  to  con-  wires  on  its  poles  and  establish  sta- 
demn  the  right  of  way  of  a  railroad  tions  and  do  business  with  points  off 
for  a  telegraph,  and  it  was  held  that  the  line  of  the  road  reserving  the  right 
an  existing  telegraph  line  could  only  to  do  local  business ;  s.  c,  2  Bull.  74. 
intervene  and  seek  to  exclude  the  new  Reversed. 

company  on  the  theory  that  it  had  an  ^  As   to   the   effect  of  dedication  or 

exclusive    right   of   way  under  a  con-  condemnation  of  land  for  railroad  or 

tract    with     the     railroad     company,  canal   purposes,  and  the  right  of  adja- 

Whether    such   a   contract   would   be  cency  in  adjoining  owners,  see  Barnett 

valid   to  give  an  exclusive    right  was  v.  Johnson,  15  N.  J.  Eq.  (2  McCart.)  481. 

not  decided,  because  an  exclusive  right  See  also  Pierce  v.  Drew,  136  Mass. 

was  not  claimed,  and  it  was  found  that  75  ;  Julia  Building  Association  v.  Bell 

no  damage  could  result.  Teleph.    Co.,    88   Mo.  258,    and   other 

In  Marietta  &  Cincinnati  Railroad  cases   in  regard  to  the  telegraph  and 

Co.   V.   West.    Union    Teleg.    Co.,    3S  highways  cited  in  Chapter  VIII. 

Ohio   St.  24;   2  O.  ^y.  L.  Bull.  152,  it  *  See  Chapter  VIII,  §§  12-14. 

was  held  that  the  grant  in    question  ^  See  Chapter  VIII,  §§  8-10. 


I  4.]  IN   STREETS   AND   HIGHWAYS.  137 

to  the  public  for  general  use,  but  only  for  use  in  a  certain  way. 
The  land  is  condemned  by  a  certain  corporation  for  the  purpose 
of  transportation  by  means  of  engines  and  cars  on  a  railroad 
track.  The  use  of  the  land  by  another  corporation,  or  even  by 
the  same  corporation  for  another  and  different  purpose,  may  well 
be  held  to  be  an  additional  use  for  which  further  compensation 
should  be  paid. 

Accordingly  it  has  been  held  that  a  telegraph  company  using 
the  right  of  way  of  a  railroad  company  for  the  purpose  of  gen- 
eral telegraph  business  must  make  compensation  for  the  use  of 
the  land  to  the  owner  of  the  soil,'  but  that  so  far  as  a  telegraph 
is  appurtenant  to  the  railroad,  and  necessary  or  convenient  to  the 
use  of  the  railroad,  the  construction  of  it  is  consistent  with  the 
purposes  for  which  the  land  is  taken,  and  that  no  further  compen- 
sation need  be  made." 

§  4.  Statutory  Authority  Given  to  Telegraph  Companies  With 
Respect  to  the  Use  of  Raih-oad  Lands  is  to  be  Construed  Strictly. — 
It  was  held  by  the  court  of  exchequer  in  England  in  1854,' 
that  a  telegraph  line  was  not  authorized  by  the  act  of  14  and 
15  Vict.,  ch.  135,  to  cross  under  a  railway  so  as  to  interfere  with 
or  damage  it.  Boring  through  the  ballast  under  the  rails  was 
held  to  be  an  interference,  and  the  court  said  that  the  power  to 
cross  was  strictly  limited  by  the  terms  of  the  act. 

It  was  held  by  the  Supreme  court  of  New  York,  in  1880,'  that 

1  A.  &  P.  Teleg.  Co.  v.  C.  R.  I.  R-  R-  that  the  company  had  the  right  itself 
Co.,  6  Biss.  158;  West.  Union  Teleg.  or  by  contract  with  another  company, 
Co.  V.Am.  Union  Teleg.  Co.,  9  Biss.  72;  to  erect  the  poles  and  wires  necessary 
Am.  Teleg.  &  Teleph.  Co.  v.  Pearce,  to  maintain  a  line  of  telegraph.  The 
71  Md.  535;  18  Atl.  Rep.  910;  sub  court  said  that  since  under  the  charter 
nom.  A.  T.  &  T.  Co.  v.  Smith,  i  Am.  the  land  was  held  in  fee  simple,  the 
R.  R.  &  Corp.  Rep.  73  (1889).  right  to  erect  poles  upon  it  was  a  mat- 
As  to  condemnation  of  the  rights  of  ter  of  course.  Prather  v.  West.  Union 
the  private  landowners,  see  New  Or-  Teleg.  Co.,  89  Ind.  501  (1883). 
leans,  Mobile  &  Tex.  R.  R.  Co.  v.  As  to  the  right  of  a  railroad  com- 
South  &  Atlantic  Teleg.  Co.,  53  Ala.  pany  having  a  line  of  telegraph  for 
211,(1875).  Also  cases  cited  in  Chap-  its  own  use  to  permit  a  telegraph 
ter  XII,  ^(j  7  and  8.  company  to  use  it  for  general  business, 
'^  West.  Union  Teleg.  Co.  v.  Rich,  19  see  Marietta  &  Cine.  R.  R.  Co.  v. 
Kan.  517;  27  Am.  Rep.  159  (1878);  West.  Union  Teleg.  Co.,  38  Ohio  St.  24. 
State,  Duke,  pros.  v.  Central  N.  J.  ^  South  Eastern  Ry.  Co.  v.  E.  &  A. 
Teleph.  Co.,  53  N.  J.  L.  J.  341,  349  per  Electric  Printing  Teleg.  Co.,  9  Exch. 
Reed,  J.  363. 

In  a  case  in   Indiana   in   which  the  ♦  New  York  City  &  Northern  R.  R. 

charter  of  the  railroad  company  gave  Co.   v.  Central  Union  Teleg.  Co.,  21 

it  the  land  in  fee  simple,  the  court  held  Hun  261. 


138  ELECTRIC  WIRES  [§  5. 

the  provision  of  the  telegraph  act  of  1853  (Laws,  ch.  471,  §2), 
authorizing  telegraph  companies  to  erect  fixtures  upon  "  any  of 
the  public  roads  "  of  the  state,  did  not  apply  to  the  right  of  way 
of  a  railroad  company. 

§  5.  Miscellaneous  Matters. — In  Western  Union  Telegraph  Co. 
V.  Western  &  Atlantic  R.  R.  Co.,^  it  was  held  that  a  contract 
between  a  railroad  company  and  a  telegraph  company,  by  which 
the  latter  was  to  put  up  a  wire  for  the  exclusive  use  of  the  rail- 
road company,  connecting  it  with  the  various  stations,  and  fur- 
nishing all  the  necessary  instruments  for  the  exclusive  use  of  the 
railroad  company  was  not  a  sale  of  the  wire,  and  that  a  lessee  of 
the  railroad  took  the  property  subject  to  the  terms  of  the  con- 
tract, and  acquired  only  such  interest  in  the  wire  as  the  lessor 
had. 

In  Western  Union  Telegraph  Co.  v.  Baltimore  &  Ohio  Railroad 
Co.^  it  was  held  that  a  license  by  a  railroad  company  to  maintain 
a  telegraph  line  along  its  road  so  long  as  the  licensee  existed, 
expires  with  the  expiration  of  the  telegraph  patents  held  by  the 
licensee  notwithstanding  the  reincorporation  of  the  company. 

^  U.  S.  Supreme  Court,  i  Otto  283.  duties  with  reference  to  the  telegraph, 

^20  Fed.  Rep  572.  see  West.  Union  Teleg.  Co.  v.  Union 

For  cases    relating  to   the   relation  Pacific  R.  R.  Co.,  i  McCrary  418,  582  ;  3 

between  the  telegraph  companies  and  Fed.  Rep.  1,423;  Cent.  Branch  Union 

the  Union  Pacific  Railroad   Company  Pacific  R.  R.  Co.  v.  West.  Union  Teleg. 

under  the  acts  of  Congress  providing  Co.,  3  Fed.  Rep.  417.     Citing  and  af- 

for  the  construction   of  that   railroad  ^r/«?«^  Atl.  &  Pac.  Teleg.  Co.  v.  Union 

and   conferring   special    powers    and  Pacific  Teleg.  Co.,  i  Fed.  Rep.  745. 


§  2.]  IN   STREETS  AND   HIGHWAYS.  1 39 


CHAPTER  XIV. 

INTERFERENCE  OF  DIFFERENT  KINDS  OF   ELECTRIC  CURRENTS — 

CONFLICTING   USES   OF   ELECTRIC  WIRES 

IN    THE    STREETS. 

§  1.  The  Use  of  the  Telephone  Disturbed  by  Electric  Light  and  Electric 
Railway  Currents. — The  new  uses  of  electric  wires  have  led  to 
controversies  between  the  new  and  the  old.  The  telephone 
having  obtained  possession  of  the  streets  naturally  resented  the 
intrusion  of  the  newcomers,  and  with  good  reason,  because  it 
was  found  that  the  more  powerful  currents  of  the  electric  light 
and  the  electric  railway  caused  serious  disturbance  in  the  delicate 
variations  of  the  current  required  to  transmit  the  sound  of  the 
human  voice. 

The  wires  did  not  touch  one  another  ;  there  was  no  interference 
with  any  tangible  property  ;  but  there  was,  nevertheless,  a  serious 
disturbance  of  the  current  used  for  the  telephone.  Electricity 
operates  at  a  distance,  and  the  currents  are  carried,  not  only 
along  the  wires,  but  also  through  the  earth  ;  and  when  new  wires 
were  strung  along  the  streets  parallel  with  the  telephone  wires, 
and  the  strong  currents  required  for  light  and  motive  power  were 
sent  through  them  and  came  back  again  through  the  earth,  the 
telephone  current  was  affected  so  that  buzzing  sounds  were 
heard  instead  of  the  human  voice  ;  the  call-bells  were  rung  and 
false  alarms  were  given,  so  that  the  business  of  the  telephone 
companies  was  greatly  disturbed,  and  their  subscribers  were 
seriously  annoyed. 

Strenuous  opposition,  therefore,  was  made  by  the  telephone 
companies  to  the  use  of  the  streets,  first  for  electric  light  wires, 
and  afterwards  for  the  electric  railway,  and  there  has  been  much 
litigation  and  some  conflict  of  decisions. 

§  2.  Causes  and  Manner  of  the  Disturbances  Explained. — Without 
going  into  a  discussion  of  electrical  phenomena,  we  must  state  in 
a  few  words  the  facts  out  of  which  the  conflict  arises.  The  tele- 
phone as  it  has  been  ordinarily  constructed  makes  use  of  the 
earth  for  the  return  current,  and  the  electric  railway,  in  using 
what  is  known  as  the  single  trolley  system,  also  makes  use  of  the 
earth  even  though  the  wires  are  grounded  in  the  rails. 

The  earth  was  used  for  the  return  current  by  Professor  Henry 


I40  ELECTRIC   WIRES  [§  4. 

when  he  worked  the  first  electric  telegraph  line  in  the  campus  at 
Princeton  in  1835/  and  the  earth  has  been  in  common  use  ever 
since  for  the  purpose  of  completing  the  circuit  in  all  applications 
of  the  electric  current.  It  is  possible,  of  course,  to  use  a  metallic 
circuit,  but  it  is  cheaper  to  use  the  earth,  and  the  earth  is  used 
in  common  by  all.  Continuous  currents  passing  through  the 
earth  have  little  effect  upon  one  another,  but  a  pulsating  or 
discontinuous  current  disturbs  another  current.  The  telephone 
requiring  a  delicate  pulsating  current  is  affected  even  by  the 
currents  of  other  telephones,  and  much  more  by  the  strong  and 
varying  currents  produced  by  the  dynamos  generating  electricity 
for  light  and  power.  The  effect  varies  with  the  nature  of  the 
soil,  and  the  manner  in  which  the  several  circuits  are  grounded, 
but  when  the  telephone  uses  the  earth  for  its  circuit,  it  is  almost 
inevitably  disturbed  by  the  use  of  the  earth  for  dynamic  currents 
in  the  same  direction  and  locality. 

§  3.  The  Same  Subject — Induction  and  Leakage. — When  two  sys- 
tems use  the  earth  for  a  return  current,  there  is  also  interference 
by  induction  between  parallel  wires  running  near  together,  a  cur- 
rent in  one  wire  inducing  a  similar  current  in  the  opposite  direc- 
tion in  the  other,  so  that  even  a  conversation  over  one  wire  can 
be  heard  by  one  using  a  telephone  on  the  other,  and  the  pulsa- 
tions of  a  dynamic  current  make  a  buzzing  sound  which  drowns 
the  sound  of  the  voice. 

Still  another  cause  of  disturbance  is  leakage,  by  which  one  cur- 
rent grounded  near  another  passes  over  to  it  and  increases  its 
force.  This  took  place  when  both  currents  sought  the  same 
course  on  their  return,  and  since  telephone  wires  were  often 
grounded  by  means  of  water  pipes  and  gas  pipes,  disturbances 
frequently  occurred  by  reason  of  leakage  from  the  electric  light 
currents. 

Since  the  telephone  current  is  weaker  and  the  use  of  it 
depends  upon  the  accuracy  of  its  pulsations,  all  these  disturb- 
ances are  very  injurious  to  the  telephone  system,  and  the  value 
of  it  would  be  greatly  impaired  if  it  were  to  be  subject  to  such 
disturbances. 

§  4.  Some  of  the  Difficulties  May  be  Avoided  by  the  Metallic  Circuit 
— Objections  to  This. — Most  if  not  all  of  these  difficulties  can  be 
avoided  by  the  use  of  a  metallic  circuit,  either  for  the  telephone 

^  Joseph  Henry  and  the  Magnetic  Telegraph,  an  address  delivered  at  Prince- 
ton College,  June  16,  1885,  by  Edward  N.  Uickerson,  LL.D.  New  York: 
Charles  Scribner's  Sons,  1885,  p.  19. 


§  6.]  IN   STREETS   AND    HIGHWAYS.  I4I 

current  or  for  all  other  currents,  for  in  this  case  the  induction  would 
be  neutralized.  The  objection  to  the  use  of  the  metallic  circuit 
is  the  expense. 

The  metallic  circuit  is  used  in  all  the  systems  of  electric  light- 
ing, but  it  is  not  always  perfectly  balanced  and  there  are  both 
leakage  and  induction.  The  electric  railway  uses  the  rails,  but 
these  not  being  insulated,  the  current  affects  other  currents  in  the 
earth.  A  true  metallic  circuit  can  only  be  made  by  a  return  wire 
kept  in  constant  connection  with  each  car  by  a  second  trolley. 
This  is  expensive  to  build  and  complicated  in  operation.  The 
telephone  can  use  a  metallic  circuit,  but  to  have  a  double  wire 
for  every  instrument  would  be  very  expensive,  and  by  what  is 
called  the  McCluer  device,  a  common  return  wire  may  be  used  by 
which  substantially  the  same  purpose  is  accomplished. 

§  5.  Telephone  Companies  Insisted  that  They  Were  Entitled  to  Pro- 
tection.— The  telephone  companies  having  set  up  their  wires  in 
the  streets  with  the  consent  of  the  authorities,  and  having  spent 
much  money  in  building  up  a  profitable  business  of  great  public 
utility,  insisted  that  they  were  entitled  to  protection  against  the 
use  of  the  streets  by  other  and  more  powerful  currents  which 
damaged  their  business  and  impaired  the  value  of  their  property. 
They  said  that,  having  established  their  business  and  set  up  their 
wires  long  before  the  electric  light  and  electric  railway  companies 
were  organized,  they  were  not  obliged  to  adopt  new  and  expen- 
sive devices  for  neutralizing  the  effect  of  the  new  currents,  and 
that  on  the  other  hand,  the  other  companies  should  not  be  per- 
mitted to  use  the  streets  unless  they  would  adopt  return  wires 
and  use  all  other  devices  necessary  to  prevent  their  current  from 
disturbing  that  of  the  telephone. 

§  6.  The  First  Contest  Was  with  the  Electric  Light  Wires.— The 
electric  light  wires  were  the  first  to  disturb  the  telephones,  and 
the  first  struggle  took  place  between  the  telephone  and  the 
electric  light  companies.  Bills  for  injunction  were  filed  in  many 
courts,  and  many  temporary  injunctions  were  granted,  but  very 
few  cases  have  been  reported,  and  not  many  have  come  to  final 
hearing.  There  was  no  serious  difficulty  in  so  stringing  the  elec- 
tric light  wires  as  to  keep  them  at  some  distance  from  telephone 
wires,  and  insulating  them  so  that  the  induction  was  not  felt  at 
that  distance,  and  much  of  the  difficulty  from  leakage  could  be 
avoided  by  the  exercise  of  due  care.  A  practical  settlement  was 
therefore  made  in  many  cases,  after  a  sharp  fight,  before  a  final 
decision  had  been  reached  by  the  courts. 


142  ELECTRIC   WIRES  [§  / 

§  7.  Electric  Light  Wires — Decisions. — There  is  a  case  in  Ne- 
braska,' in  which  the  court  interfered  so  far  as  to  protect  telephone 
wires  already  set  up  in  a  street  by  compelling  the  electric  light 
wires  to  be  kept  at  a  certain  distance  from  them,  but  relief  was 
refused  as  to  those  streets  which  had  already  been  occupied  by  the 
electric  light  wires.  The  bill  alleged  that  incandescent  light 
wires  could  not  be  operated  parallel  with  telephone  wires  at  a 
less  distance  than  three  feet,  nor  arc  light  wires  at  a  less  distance 
than  ten  feet  without  interfering  with  the  use  of  the  telephone 
wires  and  preventing  the  transaction  of  the  plaintiff's  business, 
and  that  if  arc  light  wires  crossed  telephone  wires  at  a  less  dis- 
tance than  ten  feet,  unless  they  were  securely  boxed,  there  was 
danger  of  accidents.  The  decree  of  the  district  court  enjoined 
the  electric  light  company  from  using  for  arc  light  purposes  any 
wires  running  parallel  and  on  the  same  side  of  the  street  with 
the  plaintiff's  telephone  wires,  and  from  using  for  incandescent 
light  purposes  any  wire  which  ran  parallel  with  the  plaintiff's 
telephone  wire  on  the  same  side  of  the  street,  and  less  than 
eight  feet  from  the  telephone  wire,  or  in  any  case  for  a  distance 
of  more  than  three  hundred  feet ;  and  it  was  provided  that  in  all 
cases  a  strong  iron  guard  wire  should  be  suspended  across  the 
lines  every  one  hundred  feet,  midway  between  the  telephone  and 
electric  light  wires,  so  as  to  prevent  the  upper  wires  from  falling 
upon  the  lower.  This  injunction,  however,  was  confined  to 
those  streets  which  had  been  first  occupied  by  the  telephone 
wires,  and  was  refused  with  respect  to  streets  in  which  the  tele- 
phone wires  had  not  been  put  up  until  after  the  electric  light 
company  had  commenced  their  work  in  pursuance  of  a  plan 
which  had  been  submitted  to  the  ofificers  of  the  telephone  com- 
pany, and  pronounced  satisfactory.  The  district  court  also 
granted  an  injunction  in  the  latter  case  against  the  maintenance 
of  the  telephone  wires.  The  Supreme  court  sustained  this 
decision,  except  with  respect  to  the  injunction  against  the  tele- 
phone wires.  On  this  point  the  court  said  there  was  no  evi- 
dence that  the  telephone  current  had  the  slightest  appreciable 
effect  on  the  electric  light  current,  nor  that  there  was  any  danger 
from  the  former  current,  and  that,  besides,  there  was  no  prayer  in 
the  answer  for  an  injunction  against  the  plaintiffs. 

In  a  case  in  Ohio,^  it  was  held  that  an  electric  light  company, 

^  Nebraska  Teleph.  Co.  v.  York  Gas  '  West.  Union  Teleg.  Co.  v.  Cham- 
&  Electric  Light  Co.,  17  Neb.  2S4;  43  pion  Elect.  Light  Co.,  14  Cin.  Week. 
N.  W.  Rep.  126  (September  17,  1SS9).     Bull.  327. 


I  9.]  IN    STREETS   AND   HIGHWAYS.  I43 

putting  up  wires  no  nearer  than  three  or  four  feet  from  an  exist- 
ing parallel  telegraph  wire,  would  not  be  enjoined  before  final  hear- 
ing, the  bulk  of  the  testimony  showing  that  no  sensible  diminu- 
tion of  current  by  induction  would  be  caused  at  that  distance,  and 
that  the  line-men  would  incur  no  great  risk  except  in  repairing  and 
taking  down  the  wires  when,  on  notice,  the  electric  current  could 
be  stopped.  The  danger  from  falling  wires  and  from  storms,  the 
court  said,  was  too  uncertain  to  be  considered,  and  it  was  added 
that  if  an  injunction  were  awarded  it  would  be  with  these  limita- 
tions and  with  leave  to  move  to  modify  it  after  experiment. 

§  8.  More  Serious  Controversy  with  Electric  Railway  Companies. — 
In  the  case  of  the  electric  railway  it  was  more  necessary  that  the 
battle  should  be  fought  out,  for  two  reasons ;  first,  because  the 
wires  cannot  be  insulated,  and  secondly  because  they  must  be 
stretched  along  a  certain  line  directly  over  the  railroad  track. 
The  electric  current,  moreover,  was  applied  to  the  uses  of  the 
street  railway  which  had  long  occupied  the  street,  and  had 
acquired  a  right  there  before  the  telephone  was  invented,  and  the 
electric  railway,  being  used  for  the  purposes  of  public  travel,  had 
a  stronger  claim  of  right  to  use  the  streets  than  the  electric  light 
wire  or  the  telephone  itself. 

There  are,  therefore,  a  number  of  decisions  on  this  subject,  but 
many  of  them  are  those  of  inferior  courts,  and  are  not  reported 
so  as  to  be  generally  accessible.  These  must  be  stated  more 
fully  than  would  otherwise  be  necessary.  They  have  all  been 
made  within  two  or  three  years  past,  and  it  is  yet  too  soon  to  say 
that  the  law  is  entirely  settled. 

§  9.  Cases — Central  Union  Telephone  Co.  v.  Sprague  Electric  Rail- 
way &  Motor  Co. — One  of  the  first  cases  was  that  of  Central 
Union  Telegraph  Co.  v.  Sprague  Electric  Raihvay  &  Motor  Co. 
and  the  Akron  Street  Railway  Co.  in  the  court  of  common  pleas  of 
Summit  county,  Ohio,  heard  in  January,  1889.  It  was  a  petition 
for  injunction  against  operating  an  electric  railway  by  the  single 
trolley  without  a  return  wire,  in  such  a  manner  as  to  interfere 
with  the  working  of  the  telephone  system.  The  case  was  pre- 
sented on  affidavits,  and  the  court,  after  saying  that  this  was  an 
unsatisfactory  mode  of  proof,  found  that  the  operation  of  the  rail- 
way did,  in  fact,  substantially  interfere  with  the  use  of  the  plaintiff's 
telephones;  that  while  the  railroad  company  under  the  ordinances 
had  a  prior  right  to  the  use  of  the  streets,  yet  the  city  council 
had  no  right  to  grant  to  either  party  any  privileges  to  the  exclu- 
sion of  the  other.     The  court  said  that  thev  were  not  satisfied 


T44  ELECTRIC   WIRES  [§  II. 

from  the  proof  in  this  case  that  a  return  trolleywire  as  suggested 
would  relieve  the  difficulty,  and  should  hesitate  before  ordering 
it  to  be  done  lest  it  should  be  a  useless  expenditure  of  money, 
and  also  that  they  were  not  absolutely  certain  that  a  return  wire 
would  relieve  the  telephones,  although  it  seemed  from  Mr.  Mc- 
Cluer's  affidavit  that  his  device  would  accomplish  the  result.  In 
such  case,  they  said  the  expense  of  adopting  this  device  would 
be  the  measure  of  damages  of  the  complainants,  and  these  could 
be  recovered  in  an  action  at  law.  The  prayer  for  injunction  was 
denied. 

§  10.  East  Tennessee  Telephone  Company  v.  Chattanooga  Electric 
Street  Railway  Co.  and  Another  Case, — In  East  Tennessee  Telephone 
Co.  V.  The  Chattanooga  Electric  Railway  Co.,  in  the  Chancery 
court  of  Hamilton  county,  Tennessee,  an  opinion  was  filed  June 
21,  1889.  A  preliminary  injunction  having  been  granted  restrain- 
ing the  railroad  company  from  using  the  single  trolley  system, 
the  case  came  before  the  court  on  bill,  answer  and  affidavits 
upon  a  motion  to  dissolve  the  injunction.  The  defendants 
admitted  that  they  did  not  propose  to  use  the  double  trolley 
system,  but  said  they  had  adopted  a  precaution  which  had  never 
been  adopted  before  to  increase  the  conductivity  of  the  rails  and 
prevent  leakage. 

Wm.  Henry  De  Witt,  special  chancellor,  said  that  since  he 
was  not  fully  satisfied  that  injury  would  result  to  the  complain- 
ants by  the  operation  of  the  defendant's  system,  and  especially 
since  the  defendants  had  adopted  an  additional  precaution  which 
had  never  been  adopted  before,  he  was  content  to  dissolve  the 
injunction  for  the  present  upon  condition  that  the  defendants 
give  bond  in  $10,000,  to  secure  any  damages  that  might  be 
adjudged  to  the  complainants. 

There  was  also  a  decision  in  favor  of  the  telephone  company 
in  the  case  of  The  Wichita  and  Suburban  Railway  Co.,  in  the 
District  court  of  Sedgwick  Co.,  Kansas,  June  29,  1889. 

§  11.  Rocky  Mountain  Bell  Telephone  Co.  v.  Salt  Lake  City  Railway 
Co. — In  The  Rocky  Momitain  Bell  Telephone  Co.  v.  The  Salt  Lake 
City  Raihvay  Co.,  in  the  District  court  for  the  Third  Judicial 
District  of  Utah,  July  23,  1889,  an  injunction  against  a  street 
raihvay  company  was  denied  by  Zane,  J.,  on  the  ground  that  it 
did  not  appear  clearly  from  the  affidavits  that  the  electricity 
used  by  the  railway  company  would  injure  the  telephone  com- 
pany if  the  wires  of  both  were  properly  insulated  so  as  to  prevent 
leakage,  and  that  it  could  not  be  determined  on   the  affidavits 


g  12.]  IN    STREETS   AND    HIGHWAYS.  145 

whether  it  was  practicable  for  one  or  both  to  insulate  them. 
The  same  case  came  before  the  same  judge  in  the  December 
term,  1889,  o"  ^"^^  hearing,  and  he  denied  the  injunction  on  the 
ground  that  the  telephone  company  could  protect  itself  by  the 
use  of  the  McCluer  system  of  return  wires  for  the  telephone  cir- 
cuit, which,  although  very  expensive,  appeared  to  furnish  a  more 
perfect  service.  He  said  that  the  court  would  not  enjoin  the  use 
of  the  earth  by  the  defendant  for  a  return  current  so  long  as  the 
plaintiff  continued  to  use  it,  especially  as  it  did  not  appear  to  be 
established  that  it  was  practicable  for  the  defendant  to  give 
it  up. 

§  12.  Wisconsin  Telephone  Co.  v.  Eau  Claire  Street  Railway  Co. 
and  Sprague  Electric  Railway  &  Motor  Co. — The  case  of  Wisconsi7i 
Telephone  Co.  v.  Eau  Claire  Street  Railway  Co.  and  Spragiie 
Electric  Railway  &  Motor  Co.,  in  the  Circuit  court  of  Eau 
Claire  county,  Wisconsin,  came  before  the  court  on  motion  for 
a  preliminary  injunction  against  the  use  of  the  electric  current 
for  propelling  cars  in  the  streets  until  the  defendants  should  have 
provided  against  injury  to  persons  and  property,  and  especially 
against  injury  to  the  telephone  service  and  danger  to  subscribers 
and  employes.  The  affidavits  and  exhibits  in  the  cause  are 
valuable  as  containing  a  full  statement  of  the  facts  on  both  sides 
of  the  case,  with  a  full  account  of  the  telephone  and  electric  rail- 
way, and  of  the  devices  used  on  both  sides  to  prevent  interfer- 
ence. 

The  opinion  of  the  court  was  delivered  by  Bundy,  J.,  on 
January  29,  1890.  He  held  that  the  telephone  company  took 
their  right  to  use  the  streets  subject  to  the  right  of  public 
travel,  including  new  and  improved  modes  of  travel,  and  that  if 
the  railroad  company  using  the  street  for  this  purpose  took 
reasonable  precaution  against  doing  injury,  the  telephone  com- 
pany could  not  complain ;  that  the  defendants  in  using  the  single 
trolley  were  using  a  system  in  common  use,  that  the  evidence  was 
that  the  double  trolley  was  not  practicable  and  that  to  require 
the  use  of  it  would  be  to  require  the  operation  of  the  line  as  an 
electric  road  to  be  abandoned  ;  that  the  telephone  company,  on 
the  other  hand,  could  operate  their  line  as  it  was  or  else  adopt  a 
metallic  circuit  at  an  expense  not  very  large,  and  that  therefore 
an  injunction  should  not  be  granted.  In  answer  to  the  claim 
that  the  defendants  were  violating  a  statute  (Laws  Wis.  1889, 
ch.  375,  §  112)  requiring  electric  companies  to  provide  suitable 
insulation  and  return  wires,  the  judge  said  that  the  plaintiffs 
E.  \V.— 10 


146  ELECTRIC  WIRES  [^  I  3. 

were  in  a  like  position  differing  only  in  the  amount  of  electricity 
allowed  to  escape,  and  that  they  were  not  entitled  to  an  injunc- 
tion on  this  ground. 

§  13.  Hudson  River  Telephone  Co.  v.  Watervliet  Turnpike  & 
Railroad  Co. — The  same  question  came  before  the  Supreme  court 
of  New  York,  in  Albany  county,  in  Hudson  River  Telephone  Co. 
V.  The  Watervliet  Turnpike  &  Railroad  Co.^  on  application  for 
preliminary  injunction,  and  Mayham,  J.,  granted  an  injunction 
pendente  lite  without  prejudging  the  merits  of  the  case,  and  on 
the  plaintiff's  executing  a  bond  for  $10,000.  On  appeal  to  the 
general  term  the  injunction  was  continued  on  February  24,  1890, 
for  thirty  days,  and  until  the  defendants  should  stipulate  that 
the  court  might  determine,  on  the  final  hearing,  what  would  be 
the  necessary  expense  to  the  plaintiffs  of  preventing,  by  metallic 
circuit  or  otherwise,  the  injury  to,  or  interference  with  their  tele- 
phone, and  what  damage  the  plaintiffs  would  sustain,  and  should 
give  bond  to  pay  the  damages.  Landon,  J.,  reading  the  opinion 
of  the  court,  said  the  grant  to  the  railroad  company  made  in  1862 
to  use  any  power  except  steam  embraced  electricity,  and  that  each 
company,  therefore,  had  its  respective  rights  and  privileges  along 
the  same  streets  and  highways,  one  for  telephonic  purposes  and 
the  other  for  the  purposes  of  railway  propulsion  ;  neither  party 
might  exclude  the  other  from  the  use  of  the  space  granted  to 
both,  although  it  might  be  competent  for  the  court  to  readjust 
the  occupancy  so  as  to  afford  mutual  accommodation.  If,  for 
example,  a  man  had,  by  municipal  permission,  laid  his  gas,  water 
and  sewer  pipes  beneath  the  surface  of  a  street,  a  railway  com- 
pany  might  afterwards  be  granted  the  privilege  of  laying  its 
tracks  in  the  same  street,  subject  to  the  proper  readjustment  of 
the  pipes,  and  the  owner  of  them  would  have  no  vested  right  to 
prevent  such  readjustment. 

Speaking  of  the  plaintiff's  claim  that  the  defendant  had  invaded 
the  electrical  field  already  granted  to  the  plaintiff,  he  said :  "  It 
is  obvious  that  rules  applicable  to  a  definite  acreage  of  land  may 
not  be  applicable  here.  The  grant  to  each  company  is  to  employ 
upon  the  same  street  the  invisible  energies  of  nature ;  and,  since 
it  is  in  vain  to  define  the  fields  that  confine  them,  we  are,  per- 
force, constrained  to  seek  for  methods  which  will  neutralize  or 
reduce  to  a  minimum  the  injurious  effects  of  their  contact  or  inter- 
ference with  each  other."     Learned,  P.  J.,  concurred. 

>  Hudson  River  Teleph.  Co.  v.  Watervliet  Turnpike  &  R.  R.  Co.,  56  Hun 
67;  29  N.  Y.  St.  Rep.  22,  694;  8  N.  Y.  Supp.  497. 


§  14.]  IN   STREETS   AND    HIGHWAYS.  147 

An  appeal  from  the  order  of  the  general  term  was  taken  to  the 
court  of  appeals,  and  on  June  3,  1890,  this  court,  through  Judge 
Andrews,  delivered  an  opinion,  declining  to  entertain  the  appeal, 
on  the  ground  that  the  granting  of  an  injunction  petidente  lite 
rests  in  the  sound  discretion  of  the  court  of  original  jurisdiction, 
and  that  to  dissolve  the  injunction  then  would  inevitably  defeat 
the  plaintiff's  remedy  without  a  trial.'  The  court  said,  however : 
"We  have  examined  with  care  the  questions  involved  in  this 
case,  and  we  are  compelled  to  say  that  we  entertain  grave  doubts 
whether,  upon  the  facts  stated  in  the  complaint  and  affidavits, 
any  cause  of  action  exists  in  favor  of  the  plaintiff,  and  whether 
the  plaintiff  has  any  remedy  for  the  injury  of  which  it  complains, 
except  through  a  readjustment  of  its  methods  to  meet  the  new 
condition  created  by  the  use  of  electricity  by  the  defendant 
under  the  system  it  has  adopted."  A  decision  on  the  merits  was 
reserved  until  after  the  final  hearing.  All  concurred  except 
Finch  and  Peckham,  JJ.,  who  were  in  favor  of  a  reversal  of  the 
orders. 

The  report  of  the  referee,  Mr.  Isaac  Lawson,  was  made  on 
August  6,  1890,  and  his  decision  was  in  favor  of  the  defendants. 
He  found  as  matters  of  fact  that  the  plaintiff  could  obviate 
the  difficulty  to  some  extent,  but  not  wholly,  by  adopting  the 
McCluer  system  ;  that  it  could  obviate  the  difficulty  entirely  by 
making  each  of  its  circuits  a  metallic  one ;  that  the  defendant 
could  obviate  all  the  damage  by  adopting  the  double  trolley  or 
the  storage  battery,  and  that  this  would  cost  less  than  it  would 
cost  the  plaintiff  to  adopt  the  complete  metallic  circuit  ;  and  yet 
he  held  as  a  matter  of  law  that  the  plaintiff  had  failed  to 
establish  a  cause  of  action  against  the  defendant. 

§  14.  The  Same  Continued. — An  appeal  was  taken  to  the  general 
term  from  the  judgment  entered  on  the  report  of  the  referee, 
and  in  September,  1891,  the  judgment  was  reversed  and  a  new 
trial  was  ordered.^  Mayham,  J.,  who  did  not  sit  on  the  former 
hearing,  read  the  opinion  of  the  court.  Assuming  that  both  the 
telephone  and  the  railroad  company  held  valid  grants  from  the 
proper  authorities,  he  said  the  inquiry  was  whether  either  of 
them  could  so  conduct  its  business  as  to  injure  or  impair  the 
business  of  the  other. 

He  referred  to  a  decision  of  the  general  term  above  referred 

^  Watervliet  Turnpike  &  R.  R.  Co.  v.  Hudson   River  Teleph.   Co.,  9  N.  Y. 
Supp.  177;  31  N.  Y.  St.  Rep.  524;  121  N.  Y.  397;  24  N.  E.  Rep.  832. 
*  61  Hun  141 ;  39  N.  Y.  St.  Rep.  952. 


148  ELECTRIC   WIRES  [§  I4. 

to/  in  which  it  was  held  that  the  authority  of  the  railroad  to 
operate  their  line  embraced  electricity  although  this  motive 
power  was  unknown  when  the  grant  was  made,  and  he  said  that 
under  this  decision  there  was  no  longer  any  question  of  the  right 
of  either  party  to  the  exclusive  use  of  the  street,  because  both 
had  a  grant  of  power  to  employ  the  same  invisible  agency  in  the 
same  street,  and  each  must  therefore  protect  itself  against  the 
injurious  effect  of  the  use  of  it  by  the  other;  but,  he  said,  while 
this  must  be  the  law  as  to  the  street,  it  by  no  means  followed 
that  the  same  rule  applied  to  private  property,  or  that  the  rail- 
road, even  if  it  had  a  right  to  pervade  the  street  with  its  current, 
could  adopt  a  power  which  could  not  be  confined  to  this,  but 
would  spread  out  upon  the  property  of  the  abutting  owners  and 
cause  disturbance  in  the  stations  of  the  telephone  company  and 
its  subscribers.  The  referee  expressly  found,  he  said,  that  the 
stations  were  located  on  private  property  and  that  the  telephone 
service  was  not  disturbed  by  "  conduction  or  leakage "  of  the 
railroad  current,  except  when  it  flowed  upon  private  property  of 
the  company  or  its  subscribers.  He  applied  to  this  the  principle 
that  one  who  for  his  own  benefit  brings  upon  his  own  premises 
anything  which,  if  it  escapes,  will  do  damage,  is  bound,  at  his  peril 
to  confine  it  to  his  own  premises.  He  referred  also  to  the  prin- 
ciple that  from  a  general  grant  it  cannot  be  presumed  that  the 
legislature  intended  to  authorize  acts  to  the  injury  of  third 
persons  where  no  compensation  is  provided,  and  to  the  principle 
that,  when  a  grant  is  made  to  conduct  a  business  and  there  are 
two  ways  of  conducting  it,  one  injurious  to  third  persons,  and 
one  which  is  not,  a  court  of  equity  will  enjoin  the  use  of  the 
former.  He  said  it  appeared  from  the  case  that  the  single  trolley 
system  was  not  the  only  way  by  which  electricity  might  be 
applied  to  the  propulsion  of  street  cars,  and  as  the  defendant 
could  avail  itself  of  the  grant  in  another  way  not  injurious  to  the 
plaintiff,  it  could  not  be  permitted  to  justify  the  injury  under  the 
statute  and  ordinance.  He  said  that  when  the  case  was  before 
courts  on  the  motion  to  dissolve  the  injunction,  it  was  assumed 
that  the  telephone  company  could  change  its  system  from  a 
ground  current  to  a  metallic  current  with  much  less  expense  than 
the  defendant  could  change  from  a  single  to  a  double  trolley 
system,  but  that  from  the  trial  of  the  action  and  the  report  of  the 
referee,  it  now  appeared  that  the  defendant  could  obviate  the 
difficulty  complained  of  with  very  much  less   expense  than  the 

^  56  Hun  67  ;  §  13  supra. 


§15.]  IN   STREETS  AND    HIGHWAYS.  1 49 

same  could  be  done  by  a  change  of  the  plaintifT's  system ;  and, 
besides  this,  it  appeared  that  although  the  defendant's  charter 
was  granted  in  1862,  the  plaintifT's  capital  was  employed  in  the 
business  long  before  either  party  knew  that  the  defendant  could 
use  electricity ;  for  these  reasons,  and  because  the  plaintiff  had 
not  an  adequate  remedy  at  law,  the  judgment  of  the  referee 
dismissing  the  bill  for  injunction  was  reversed  and  a  new  trial  was 
ordered.  Landon,  J.,  concurred.  Learned,  P. J.,  concurred,  but 
based  his  decision  on  what  he  considered  the  effect  of  the 
determination  of  the  court  of  appeals  in  declining  to  dissolve  the 
injunction. 

Judge  Learned  said  that  it  was  of  no  avail  for  the  court  of 
appeals,  while  dismissing  the  defendant's  appeal,  to  say  it  had 
grave  doubts  whether  on  the  facts  stated  the  plaintiff  had  a  good 
cause  of  action,  because  when  the  court  dismissed  the  appeal  it 
did  in  fact  decide  that  the  plaintiff  had  stated  a  good  cause  of 
action. 

In  a  later  decision  of  the  court  of  appeals,  however,'  the  doc- 
trine declared  in  the  telephone  case  was  stated  to  be  as  follows : 
"  To  dissolve  an  injunction  with  the  inevitable  result  of  defeating 
the  plaintiff's  remedy  without  a  trial,  we  must  be  entirely  satisfied 
that  the  case  is  one  in  which  by  settled  adjudications  the  plaintiff 
upon  the  facts  stated  is  not  entitled  to  final  relief."  It  would 
seem,  therefore,  that  the  question  between  the  telephone  and  the 
electric  railway  is  still  open  for  argument  in  the  court  of  appeals, 
to  which  it  is  understood  that  an  appeal  in  this  case  between  the 
two  companies  has  been  taken. 

§  15.  East  Tennessee  Telephone  Co.  v.  Knoxville  St.  Ry.  Co. — In 
East  Tennessee  Telephone  Co.  v.  Knoxville  Street  Raihvay  Co.,  in  the 
Chancery  court  of  Knox  county,  Tennessee,  what  may  be  called 
an  eloquent  opinion  was  read  by  Chancellor  Gibson,  on  April  21, 
1890.  The  suit  was  brought  by  the  telephone  company  to  enjoin 
the  railroad  company  from  using  the  earth  as  a  return  circuit  and 
from  interfering  with  the  electrical  condition  of  the  air  to  the 
injury  of  the  telephone  company.  The  bill  alleged  that  the 
telephone  company  had  obtained  the  privilege  of  erecting  poles 
in  the  streets  for  a  telephone  line  and  had  a  vested  right  to  use  a 
strip  of  earth  along  the  line  of  the  poles  as  a  return  circuit, 
exclusive  of  every  subsequent  user  destructive  thereof  or  incon- 
sistent therewith. 

The   Chancellor  denied  that  the  right  to  erect   poles  gave  an 

1  Young  V.  Rondout  &  Kingston  Gas  Co.,  Dec.  i,  1S91,  41  N.  Y.  St.  Rep.  109. 


150 


ELECTRIC  WIRES  [§  l6. 


exclusive  right  to  the  earth  or  air  for  electrical  purposes,  and  said 
the  plaintiffs  in  effect  claimed  a  perpetual  monopoly  of  the  earth 
on  which  the  city  was  built  for  all  the  uses  of  an  electrical  circuit, 
and  that  the  fact  that  they  used  a  delicate  current  was  no  reason 
for  denying  to  the  people  of  Knoxville  the  benefits  of  all  the 
discoveries  and  inventions  that  might  be  made  in  the  use  of 
electricity  in  all  time  to  come.  The  streets  are  held  in  trust  for 
the  people  for  the  purposes  of  passing  along  them  and  propelling 
vehicles  over  them,  "  and  the  city  has  no  right  to  allow  the  streets 
to  be  used  for  any  purpose  inconsistent  with  those  rights  of 
travel  and  transportation.  Telephone  poles  have  no  connection 
with  travel  and  transportation,  and  have  no  just  rights  on  our 
streets  and  are  at  best  mere  tenants  at  will."  The  courts  must 
see  to  it  that  the  rights  of  the  people  are  not  surrendered  to  any 
person  or  corporation  whatever. 

§  16.  Cumberland  Telephone  Co.  v.  United  Electric  Railway  Co.— 
The  question  came  before  Judge  Brown  in  the  Circuit  court  of 
the  United  States  in  Cumberland  Telephone  Co.  v.  The  United  Elec- 
tric Raikvay  Co}  The  bill  was  filed  to  enjoin  the  use  of  electri- 
city by  the  street  railways  of  Nashville  under  any  system  which 
makes  use  of  the  earth  for  its  return  circuit  ;  the  bill  described 
the  injuries  done  to  the  complainants'  system,  and  alleged  that 
they  would  be  avoided  by  the  use  of  the  metallic  circuit ;  the 
defendants  denied  that  the  complainants  were  entitled  to  the 
monopoly  of  the  earth  for  the  return  current,  and  insisted  that 
they  should  make  use  either  of  a  complete  metallic  circuit  or  of 
the  McCluer  device. 

Judge  Brown  (now  one  of  the  Justices  of  the  Supreme  court  of 
the  United  States)  said  it  was  not  denied  that  there  was  serious 
injury  to  the  telephones,  but  that  it  must  be  borne  in  mind  that 
the  science  of  electricity  is  still  in  its  experimental  stage ;  that  a 
device  which  is  to-day  the  best,  cheapest  and  most  practicable, 
may  in  another  year  be  superseded  by  something  incomparably 
better  fitted  for  the  purpose ;  and  that  it  is  quite  possible  that 
the  legal  obligations  of  the  parties  may  change  with  the  progress 
of  invention,  and  whichever  party,  by  the  adoption  of  a  new 
device,  could  obviate  the  difficulty  might  be  obliged  to  do  so, 
leaving  the  question  of  expense  and  damages  to  be  settled  by 
the  courts ;  and  we  must  therefore  consider  the  case  with  refer^ 
ence  to  the  present  state  of  the  art,  and  with  the  possibility  that 
in  another  year  circumstances  may  so  change  as  to  reverse  com- 

1  42  Fed.  Rep.  273. 


§  i;.]     •  IN   STREETS   AND   HIGHWAYS.  1 51 

pletely  the  obligations  of  the  parties.  After  describing  the 
various  devices  which  might  be  used  by  the  railway  and  the  tele- 
phone to  obviate  the  difficulty,  he  rested  his  decision  on  the 
answer  to  the  question  whether  when  one  lawfully  using  his 
own  property  incidentally  injures  another,  "the  right  of  the  lat- 
ter to  an  injunction  does  not  depend  upon  something  more  than 
the  fact  that  he  has  suffered  an  injury,  though  his  right  to  an 
undisturbed  use  of  his  own  may  antedate  that  of  the  other."  He 
referred  to  many  English  and  American  cases,  and  said :  "  The 
substance  of  all  the  cases  we  have  met  with  in  our  examination 
of  this  question — and  we  have  cited  but  a  small  fraction  of  them 
—is,  that  where  a  person  is  making  a  lawful  use  of  his  own  prop- 
erty, or  of  a  public  franchise,  in  such  manner  as  to  occasion 
injury  to  another,  the  question  of  his  liability  will  depend  upon 
the  fact  whether  he  has  made  use  of  the  means  which,  in  the 
progress  of  science  and  improvement,  have  been  shown  by  experi- 
ence to  be  the  best ;  but  he  is  not  bound  to  experiment  with 
recent  inventions  not  generally  known,  or  to  adopt  expensive 
devices,  when  it  lies  in  the  power  of  the  person  injured  to 
make  use  himself  of  an  effective  and  inexpensive  method  of  pre- 
vention. .  .  .  Unless  we  are  to  hold  that  the  telephone 
company  has  a  monopoly  of  the  earth,  and  of  all  the  earth,  within 
the  city  of  Nashville,  for  its  feeble  current,  not  only  as  against 
the  defendants,  but  as  against  all  forms  of  electrical  energy 
which,  in  the  progress  of  science  and  invention,  may  hereafter 
require  its  use,  we  do  not  see  how  this  bill  can  be  maintained." 

The  decision  was  that  if  it  were  shown  that  the  double  trolley 
would  obviate  the  injury  to  the  complainants  without  exposing 
the  defendants  or  the  public  to  any  large  expense,  it  would  be 
the  duty  of  the  defendants  to  adopt  it ;  but  as  the  proofs  showed 
that  a  more  effectual  and  less  expensive  remedy  is  open  to  the 
complainants,  the  telephone  company  ought  to  adopt  it,  and  was 
not  entitled  to  indemnity  from  the  railway  company. 

§  17.  City  and  Surburban  Teleg.  Assoc,  v.  Cincinnati  Inclined  Plane 
Ry.  Co. — In  the  case  of  the  City  a7id  Stiburbaji  Telegraph  Assoeia- 
tion  V.  The  Cincinnati  Inclined  Plane  Railway  Co.,'  in  the  Supe- 
rior court  of  Cincinnati  an  injunction  was  granted  against  the 
railway  company  on  February  I2,  1890,  and  this  decision 
was  affirmed  by  the  general  term  of  the  Superior  court  in  the 
following  December  (opinion  by  W.  H.  Taft,  J.,  Hunt  J.,  dis- 
senting). The  decision  was  put  upon  the  ground  that  the  tele- 
1  23  Week.  Bull.  (Ohio)  165. 


152  ELECTRIC   WIRES  [§  l8. 

phone  company  had  acquired  a  right  to  use  the  streets,  and  had 
invested  money  on  the  faith  of  the  enjoyment  of  the  present 
mode  of  operating  their  franchise,  and  that  the  defendants  had 
no  right  to  disturb  them  unless  they  could  show  that  there  was 
no  other  way  in  which  they  could  enjoy  their  franchise  to  run  an 
electric  railway.  If  by  using  the  double  trolley,  no  matter  how 
expensive  it  might  be,  the  injury  could  be  avoided,  the  defendant 
had  no  right  to  ask  the  plaintiffs  to  employ  a  new  devise. 

Unless  there  was  no  other  way  of  enjoying  their  franchise, 
defendants  were  guilty  of  maintaining  a  nuisance  in  using  the 
electric  current  so  as  to  injure  the  plaintiffs.  An  injunction  was 
ordered  unless  within  six  months  the  necessary  changes  should 
be  made.  On  appeal  to  the  Supreme  court  of  Ohio  this  decision 
was  reversed.  The  opinion  of  the  court  was  delivered  by  Dick- 
man,  J.,  June  2,  1 891.*  The  court  held  that  public  travel  is  the 
chief  purpose  for  which  streets  are  laid  out  and  that  the  franchise 
of  a  telephone  company  to  use  the  streets  is  subservient  to  the 
rights  of  the  public  to  use  the  streets  for  the  purposes  of  travel; 
that  the  public  have  the  right  to  avail  themselves  of  new  and 
improved  modes  of  travel,  and  when  franchises  are  granted  for 
this  purpose  they  confer  a  right  paramount  to  the  franchise  of 
the  telephone  company,  and  if  the  operation  of  a  street  railway 
by  electricity  disturbs  the  working  of  the  telephone,  the  tele- 
phone companies  must  readjust  their  methods  to  meet  the  new 
condition.  In  regard  to  the  use  of  the  earth  for  a  return  circuit, 
the  court  said  this  had  been  done  for  forty  years  before  the  tele- 
phone was  invented,  and  although  the  telephone  company  had 
constructed  its  whole  system  at  great  expense  with  a  grounded 
circuit  under  lawful  authority  it  acquired  no  vested  right  which 
was  beyond  the  control  of  the  legislature,  and  a  grant  to  another 
company  of  a  right  to  use  electricity  for  another  purpose  must 
be  construed  as  a  denial  of  an  exclusive  franchise  if  not  as  a 
repeal  of  the  former  grant.  Taking  this  view  of  the  relations  of 
the  parties  to  each  other,  the  court  did  not  discuss  the  subject 
of  incidental  injury  to  another  in  the  use  of  one's  own  property 
or  franchise. 

§  18.  Conclusions. — It  appears  from  this  review  of  the  cases  that 
the  contest  between  the  electric  railway  and  the  telephone  com- 
panies over  the  use  of  the  streets  has  not  yet  been  definitely 

^  Cine.  Inclined  Ry.  Co.  v.  City  &  Suburban  Teleph.  Assn.,  Ohio  Sup.  Ct., 
June  2,  1891,  26  Week.  Bull.  S ;  44  Alb.  L.  J.  86;  10  Ry.  &  Corp.  L.  J.  82  ;  27  N. 
E.  Rep.  890;   12  L.  R.  A.  534. 


§  1 8.]  IN   STREETS   AND    HIGHWAYS.  153 

settled  by  the  courts,  and  it  seems  likely  that  the  settlement  will 
be  made  through  the  ingenuity  of  inventors  rather  than  by  the 
efforts  of  the  lawyers  and  judges.  The  telephone  companies  are 
already  adopting  very  generally  the  "  long  distance  "  system,  in 
which  the  metallic  circuit  is  employed  for  the  purpose  of  securing 
the  best  electrical  results  and  avoiding  all  danger  of  disturbance. 
It  is  quite  certain  that  public  convenience  will  demand  that  the 
streets  shall  be  used  for  all  the  electric  currents  that  may  be 
required,  and  that  some  way  will  be  found  by  which  this  may  be 
done.  In  the  mean  time,  it  is  the  duty  of  the  courts  to  protect 
existing  property  from  unnecessary  injury  without  needlessly 
obstructing  the  application  of  such  a  valuable  force  as  electricity 
to  new  uses  for  the  public  benefit.  It  is  certainly  true,  as  the 
courts  generally  have  held,  that  no  one  mode  of  public  service 
has  the  right  to  a  monopoly  of  the  earth  or  the  air  in  the  line  of 
the  streets  in  the  use  of  electricity,  and  the  power  of  injunction 
will  only  be  exercised  so  as  to  avoid  present  injury  to  existing 
property  until  practical  men  have  found  a  way  for  all  to  work 
together  in  harmony.  Whether  the  power  will  be  exercised  even 
to  this  extent  is  not  yet  settled,  and  it  may  be  that  the  courts 
will  decide  that  every  one  using  this  force  in  the  public  streets 
must  exercise  ingenuity  to  protect  himself  from  the  effect  of  the 
use  of  the  same  force  for  lawful  ends  and  by  lawful  means,  only 
insisting  that  each  must  use  the  best  appliances  practically  avail- 
able and  avoid  negligence  and  wanton  injury. 


154  ELECTRIC  WIRES  [§  I. 


CHAPTER  XV. 

INJURIES    FROM    UNAUTHORIZED    OR    DEFECTIVE    POLES 
AND    WIRES. 

§  1.  Introductory. — The  authority  to  set  up  poles  and  wires  in 
the  street  is  generally  made  expressly  subject  to  the  condition  that 
they  shall  be  so  located  and  constructed,  as  not  unnecessarily  to 
interfere  with  public  travel,  and  this  condition  would  no  doubt 
be  implied  whether  it  were  expressed  or  not.  The  authority 
given  is  always  subject  to  the  condition  that  the  lines  shall  be 
properly  constructed  and  shall  not  be  dangerous  by  reason 
of  defective  poles,  sagging  wires,  or  unguarded  currents  of 
electricity. 

In  discussing  the  subject  of  the  authority  by  which  poles  and 
wires  are  put  up  in  the  streets,  we  considered  in  Chapter  V 
how  far  this  obstruction  of  the  highway,  such  as  it  is,  was  justi- 
fied by  the  grant  of  permission  to  use  the  street  for  that  purpose. 
From  the  cases  referred  to  in  that  chapter,'  it  appeared,  that 
poles  and  wires  in  the  street  so  constructed  as  to  be  dangerous, 
or  so  placed  as  to  interfere  with  travel,  are  regarded  as  unauthor- 
ized obstructions  and  treated  as  nuisances,  unless  the  construc- 
tion and  location  have  been  specifically  authorized  ;  and  that 
general  authority  to  construct  the  line  is  not  sufificient  to  legal- 
ize a  construction  or  a  location  which  proves  to  be  dangerous. 
We  may  now  refer  to  cases  on  the  liability  for  injuries  to  persons 
using  the  highway  arising  from  unauthorized  obstruction  or 
improper  location  or  construction  of  the  poles,  and  from  negli- 
gence in  the  maintenance  or  operation  of  the  wires. 

§  2.  Location  of  the  Poles — Liability  for  Injuries  by  Reason  of. — 
Since  the  erection  of  a  pole,  in  the  highway  in  such  a  place  as  to 
make  a  dangerous  obstruction,  is  not  legalized  by  a  general  grant 
of  authority  to  set  up  a  line  of  poles,  it  follows  that  a  person 
setting  up  a  pole  in  such  a  place  is  liable  to  one  who  is  injured 
by  reason  of  the  dangerous  location  of  the  pole  while  he  is 
lawfully  using  the  highway  in  the  exercise  of  due  care. 

In  a  case  already  referred  to''  in  the  Supreme  court  of  New 

1  Chapter  V,  §§  2,  3,  pp.  46,  47. 

'  Kowalski  v.  Newark  Pass.  Ry.  Co.,  15  N.  J.  Law  Jour.  50;  Chapter  V,  §  3. 


§  4.]  IN   STREETS   AND   HIGHWAYS.  I  $  5 

Jersey,  Dixon,  J.,  left  it  to  the  jury  to  decide  whether  an  elec- 
tric railway  pole  set  up  in  the  middle  of  the  street,  was  in  fact 
dangerous  to  travelers,  even  though  permission  had  been  given 
to  place  the  poles  where  they  were  in  a  line  between  the  tracks, 
and  he  said  that  if  the  pole  was  in  fact  so  placed  as  to  be  danger- 
ous to  a  person  entering  a  car  about  to  pass  the  pole,  and  this 
person,  exercising  due  care,  was  injured,  the  railroad  company 
would  be  liable  in  damages. 

§  3.  The  Same — Another  Case. — So  also.  Judge  Sabin,  of  the 
United  States  District  court  charging  the  jury  in  an  earlier  case,' 
referring  to  a  telegraph  pole,  said  :  "  If  it  was  a  dangerous 
obstruction  to  the  use  of  the  street  by  the  public,  the  city  could 
not  lawfully  grant  it  so  as  to  debar  an  injured  person  from 
recovering  any  damages  he  might  sustain  in  consequence  of  its 
erection."  "  The  grant  of  a  permit  or  direction,"  he  said,  "  to  locate 
a  pole  or  post  in  a  street  extensively  used  as  a  general  thorough- 
fare both  for  pleasure  drives  and  for  business  vehicles,  in  order 
to  be  a  valid  grant  or  to  be  rightfully  there,  must  not  only  be 
in  accordance  with  statutes  and  ordinances,  but  must  also  be 
made  subject  to  the  determination  of  a  jury  whether  the  pole 
or  post,  so  located,  is  in  fact  dangerous  to  the  public  in  the  use 
of  the  street,  including  all  contingencies  incident  to  the  lawful 
use  of  the  same." 

The  plaintiff,  it  appeared,  was  driving  a  gentle  horse,  which 
became  frightened  and  ran  away,  and  the  jury  were  told  that 
if  the  driver,  using  all  the  means  in  his  power  to  stop  the  horse, 
while  still  in  the  wagon,  ran  upon  a  permanent  object  of  a  dan- 
gerous character  in  a  public  street,  the  company  which  put  up 
the  obstruction  was  liable  for  the  injury.  Where  the  pole  was 
located,  only  appears  from  the  remark  that  it  was  "  on  Church 
street  near  Tremont  near  the  corner." 

§  4.  The  Same — Another  View. — The  ruling,  of  course,  was 
based  upon  the  assumption  that  the  pole  was  in  fact  in  a 
dangerous  position. 

It  is  not  enough  that  the  pole  stands  where  it  may  be  struck 
by  a  runaway  horse.  In  a  case  in  Wisconsin,'  where  it  appeared 
that  the  pole,  although  on  the  highway,  was  within  four  or  five 
feet  of  the  fence,  and  as  near  to  it  as  could  be  without  having 
the  cross-arms    project   over  private  property,  that  there  were 

1  Wolfe  V.  Erie  Teleg.  and  Teleph.  Co.,  33  Fed.  Rep.  320  (1887). 
'Roberts    v.    West.    Union    Teleg.    Co.,  77    Wis.   589;     20  Am.    St.    Rep. 
143;  46  N.  W.  Rep.  800  (1890). 


156  ELECTRIC  WIRES  [§  5- 

three  traveled  tracks,  and  that  the  plaintiff  was  driving  along 
the  one  nearest  the  pole,  when  his  horse  ran  away  and  threw 
him  against  it,  it  was  held  on  demurrer  that  there  was  no  cause 
of  action.  The  court  said  it  was  plain  that  the  poles  did  not 
and  could  not  have  incommoded  the  highway  ;  "  the  horses  ran 
away  and  might  have  run  into  the  fence  if  the  pole  had  not  been 
there ;  there  was  nothing  in  the  entire  width  of  the  street  to 
prevent  the  team  from  passing  over  it  in  safety." 

So  also,  in  the  United  States  Circuit  court  for  the  Northern 
District  of  Ohio,"  it  was  held  that  a  telegraph  company  having 
statutory  authority  to  set  up  poles,  exercising  reasonable  care 
so  as  not  to  incommode  public  travel,  was  not  required  so  to 
locate  its  poles  as  to  provide  against  all  possible  injuries  that 
might  be  incurred  under  extraordinary  circumstances,  and  the 
jury  were  told  to  ascertain  the  location  of  the  pole,  and  find 
whether  it  did  so  inconvenience  the  public  as  to  make  the  loca- 
tion careless  or  negligent.  The  plaintiff  was  required  to  use  due 
diligence,  and  the  defendant  was  held  not  to  be  liable  for  the 
negligence  of  the  plaintiff's  driver. 

The  same  principle  was  affirmed  by  the  Supreme  court  of  the 
State  of  New  York,  in  a  case  in  which  a  telegraph  pole  was 
thrown  down  by  means  of  a  collision  with  a  wagon  drawn  by  a 
runaway  horse.'  The  plaintiff  was  driving  along  the  road  shortly 
afterward,  and  his  wagon  was  caught  by  the  wires  which  were 
thrown  across  the  highway.  The  court  held,  that  if  the  pole  was 
placed  at  a  sufficient  distance  from  the  traveled  portion  of  the 
highway  to  be  safe  from  vehicles  passing  along  under  any  ordi- 
nary circumstances,  the  defendant  was  not  bound  so  to  make 
or  manage  its  line  as  to  guard  against  severe  collisions,  the 
occurrence  of  which  could  not  have  been  reasonably  expected. 

§  5.  The  Same— Source  and  Extent  of  the  Liability. — Some  of 
these  rulings,  it  will  be  observed,  were  merely  those  of  a  judge 
charging  a  jury,  and  the  cases  cannot  be  regarded  as  establishing 
by  authority  a  definite  and  satisfactory  rule  of  law.  It  is  no 
doubt  true  that  a  person  setting  up  a  pole  in  the  street  without 
due  regard  for  the  safety  of  the  public  in  the  ordinary  use  of  a 
street,  may  be  liable  for  injuries  directly  caused  by  the  presence 
of  the  pole  even  though  he  may  have  had  permission  or  even 
authority  to  erect  the  pole  for  a  certain  proper  purpose.  The 
liability  arises  out  of  neglect  of  the  precautions  required  by  the 

1  Sheffield  v.  Central  Union  Teleg.  ^  Allen  v.  Atlantic  and  Pacific  Teleg. 
Co.,  36  Fed.  Rep.  164  (1S88).  Co.,  21  Hun  22  (18S0). 


§6.]  IN    STREETS   AND   HIGHWAYS.  I  57 

conditions  of  public  travel,  and  exists  because  the  grant  is  made 
either  expressly  or  by  implication  subject  to  the  requirements  of 
public  safety  in  the  use  of  the  streets.'  It  may  even  be,  as  was 
said  by  Judge  Dixon  in  the  New  Jersey  case,'  that  although  the 
poles  are  located  under  the  direction  of  the  municipal  council 
with  the  authority  of  the  legislature,  the  grant  is  a  mere  permis- 
sion of  which  the  grantee  need  not  avail  himself  and  which  he 
takes  subject  to  the  duty  to  regard  the  safety  of  travelers.  The 
duty  referred  to  in  that  case,  however,  was  the  duty  of  a  street 
railway  company  to  take  care  of  its  own  passengers,  and  it  may 
well  be  that  the  rights  of  the  general  public  are  limited  by  the 
act  of  the  legislature  in  authorizing  the  obstruction  of  the 
street.  It  is  certain  that  as  against  the  corporate  action  of  the 
town  the  location  of  the  poles  by  the  permission  of  the  munici- 
pal authorities  under  legislative  sanction  is  a  complete  justifica- 
tion.' With  respect  to  the  rights  of  individuals  there  may  still 
remain  an  appeal  to  the  courts.  This  appeal,  however,  cannot 
be  made  on  the  general  question  whether  the  pole  is  in  fact  dan- 
gerous. The  real  question  is  whether  it  is  or  is  not  lawful.  If  it 
is  lawfully  placed  where  it  is  and  as  it  is,  it  is  not  a  nuisance  and 
cannot  be  a  cause  of  action.'  The  question  will  rather  be 
whether  the  authority  is  not  subject  to  the  condition  that  due 
regard  shall  be- had  for  the  public  safety,  and  if  so,  then  the  ques- 
tion of  the  dangerous  character  of  the  obstruction  should  not  be 
left  to  the  jury  to  determine,  upon  their  own  opinion  of  the 
propriety  of  making  obstructions  of  that  kind,  but  must  be  de- 
cided in  view  of  the  fact  that  the  legislature  has  authorized  the 
placing  of  a  line  of  poles  for  a  certain  public  purpose  along  and 
in   the  street. 

§  6.  The  Same — The  Legislature  May  Modify  the  Rights  of  the 
Public  in  the  Street — Electric  Railway  Poles — Conclusion.— Whether 
an  obstruction  is  dangerous  depends  a  good  deal  on  the  manner 

^  Gaslight  and  Coke  Co.  v.  Vestry  of  *  Mersey  Docks    Trustees    v.   Gibbs, 

St.  Mary  Abbott's,  15  Q^  B.  D.  i  (18S4);  L.  R.,  i.  H.  L.  93,  112  (1S66);  Borden- 

Biscoe   V.  Great    Eastern   Ry.  Co.,  L.  town  and  South  Amboy  Turnpike  Co. 

R.,   16  Eq.  636  (1871);    La-vvrence   v.  v.    Camden  and  Amboy  R.  R.  and  T. 

Great  Western  Ry.  Co.,  16  Q^  B.  643  Co.,  17  N.  J.  L.  (2  Harr.)  314;  British 

(iS.sO-  Cast  Plate  Mfrs.  v.  Meredith,  4  Term 

*  Kowalski  v.  Newark  Pass.  Ry.  Co.,  Rep.  794;  Boulton  v.  Crowther,  2  Barn. 

15   N.  J.  Law  Journal,  50;  Chapter  V,  and  Cress.  703 ;    Cleveland   and  Pitts- 

^  3'  P-  47-  burgh  R.  R.  Co.  v.   Speer.  56  Pa.  St. 

'  Chapter  V.  §§  i  and  2,  p.  46,  47,  and  325,  334;    Stevens  v.  Middlesex  Canal 

cases  there  cited,  Co.,   12  Mass.  466. 


158  ELECTRIC   WIRES  [§  6. 

in  which  the  highway  is  used  by  the  public,  and  this  depends  on 
the  extent  of  the  right  of  the  public  to  make  use  of  it.  It  must 
be  remembered  that  the  legislature,  representing  the  public,  has 
the  power  to  change  the  mode  of  use,  or  release  the  public 
right  by  vacating  the  highway  altogether/  The  public  must 
adapt  themselves  to  the  new  uses  of  the  street  and  exercise  due 
care  to  avoid  authorized  obstructions,  and  if  injury  happens  from 
neglect  of  such  precautions  no  one  is  liable. 

It  is  certainly  not  true  that  one  who  puts  up  a  telegraph  pole 
under  authority  within  the  line  of  the  curbstone  is  liable  for  a 
collision  with  a  runaway  horse  even  though  the  driver  be  not  to 
blame.  A  telegraph  pole  in  this  position  is  no  more  dangerous 
than  a  tree  or  a  lamp  post — they  are  all  beyond  the  space  allotted 
for  driving,  and  drivers  must  avoid  them  at  their  peril. 

Poles  along  the  middle  of  the  street  for  the  electric  railway 
seem  to  present  a  different  question.  They  stand  in  that  part  of 
the  street  in  which  people  are  accustomed  to  drive,  and  they  are 
dangerous  to  those  who  use  it  as  if  the  poles  were  not  there.  The 
legislature,  however,  has  power  to  divide  the  street  and  make  two 
traveled  ways.  If  a  street  is  wide,  a  park  may  be  laid  out  along 
the  middle  of  it  with  a  fence  on  either  side.  In  London  and  some 
other  cities  the  lamp  posts  are  placed  along  the  middle  of  the 
crowded  streets  for  the  purpose  of  dividing  the  traffic  into  two 
separate  streams,  and  so  when  a  double  line  of  street  car  tracks 
has  been  laid  along  the  middle  of  a  broad  street  and  a  line  of 
poles  has  been  lawfully  authorized  to  be  set  up  at  intervals  be- 
tween them,  the  traffic  must  adapt  itself  to  them.  They  mark 
the  limits  of  the  traveled  way  just  as  much  as  the  curbstones 
and  fences  do,  and  persons  must  take  care  to  avoid  them.  Indi- 
viduals have  only  such  rights  as  the  public  have,  and  the  public 
rights  are  within  the  control  of  the  legislature  ;  the  right  of 
travel  in  the  street  therefore  is  that  which  the  legislature  allows. 
We  are  speaking  now  of  the  rights  of  individuals  exercising  the 
public  rights  of  travel.  The  question  of  the  rights  of  land- 
owners depends  on  other  considerations,  for  their  rights  of  prop- 
erty are  protected  by  the  constitution,  but  the  mere  right  of  pub- 
lic travel  may  be  limited  by  the  legislature  to  any  part  of  the 
street  it  may  see  proper,  or  be  released  altogether,  and  therefore 
the  question  of  liability  for  the  injury  to  a  traveler  by  reason  of 
an  obstruction  must  depend  on  the  question  whether  the  so-called 

^  Chapter  II,  §  3,  p.  8,  and  cases  there  cited. 


§  8.]  IN   STREETS   AND   HIGHWAYS.  159 

obstruction   is  authorized  or  not,  and  not  on  the  decision  of  a 
court  and  jury  as  to  whether  it  is  in  their  opinion  dangerous. 

§  7.  Wires  Hanging  Too  Low— Liability  For  Injuries.— Persons 
authorized  to  string  lines  of  wire  along  and  across  public  roads 
are  bound  to  use  due  diligence  to  place  and  keep  them  where 
they  will  not  obstruct  the  ordinary  uses  of  the  highway  or  cause 
injuries  to  persons  traveling  upon  it.  The  permission  to  set  up 
telegraph  and  electric  light  wires  is  generally  made  expressly 
subject  to  the  condition  that  they  shall  not  interfere  with  the  free 
use  of  the  highway  for  public  travel  and  transportation,  and  even 
without  express  words  such  a  condition  would  no  doubt  be  im- 
plied, and  it  is  always  understood  that  statutory  powers  of  this 
kind  are  subject  to  the  condition  that  they  shall  be  exercised  in 
a  careful  and  proper  manner.' 

If,  therefore,  wires  are  so  put  up  as  to  obstruct  the  ordinary 
use  of  the  street,  or  if  they  are  suffered  to  hang  down  so  as  to 
entangle  a  traveler  and  cause  injury  to  one  exercising  due  care 
in  the  use  of  the  street,  the  statutory  authority  will  afford  no 
justification  in  an  action  for  damages.  The  liability  may  rest  on 
the  mere  breach  of  the  duty  not  to  obstruct  the  street;  in  such 
case  affirmative  proof  of  negligence  is^  not  required,  although 
the  company  might  justify  by  showing  its  authority  and  the 
exercise  of  proper  care  and  that  the  sagging  of  the  wire  was  due 
to  accident  or  to  causes  not  reasonably  to  be  expected."  The 
liability  may  also  be  placed  upon  the  ground  that  in  maintaining 
wires  over  the  streets,  the  defendant  has  placed  there  for  his  own 
benefit  something  which,  if  not  cared  for,  may  become  dangerous 
to  persons  lawfully  using  the  street,  and  the  defendant  is  there- 
fore under  obligation  to  keep  it  in  its  proper  place.'  And  there 
can  be  no  doubt  that  a  person  or  company  maintaining  wires  over 
the  streets  is  liable  for  negligence  with  respect  to  travelers  in  the 
construction  and  maintenance  of  the  line. 

§  8.  The  Same — Decisions. — A  decision  upon  the  liability  for 
obstructing  the  highway  was  made  in  the  early  days  of  the  tele- 
graph  in  the  Supreme  Judicial  court  of  Maine,*  and  this,  by  the 

>  Mersey   Docks  Trustees   v.    Gibbs,  ^ -phompson      on      Electricity,      78; 

L.  R.,  I.  H.L.  93,  and  other  cases  cited  Fletcher  v.  Rylands,  L.  R.,  i    Ex.  265  ; 

in  note  i,  §  5,  sufra.  Rylands   v.   Fletcher,  L.    R.,  3   H.  L. 

"  Ward  V.  Atlantic  and  Pac.  Teleg.  330. 

Co.,  71   N.  Y.  Si,  s.  c.  27  Am.  Rep.  10;  ♦Dickey   v.    Maine     Teleg.   Co.,   46 

Allen  V.  Atlantic  and  Pac.   Teleg.  Co.,  Me.  4S3  (1859). 
21  Hun  22. 


l6o  ELECTRIC   WIRES  [§  8. 

way,  is  the  only  case  on  telegraph  wires  in  the  streets  cited  by 
Scott  &  Jarnagin  in  1868,  or  referred  to  in  the  first  series  of  the 
United  States  Digest,  ending  in  1870. 

The  defendant,  a  telegraph  company,  was  authorized  by  stat- 
ute to  put  up  a  line  along  the  public  roads,  locating  its  posts 
and  fixtures  so  as  not  to  incommode  the  public  use  of  the 
highway.  A  wire  hung  low  over  one  side  of  the  road,  and  a 
stage  having  turned  off  the  usually  traveled  track  toward  the 
postofifice,  the  upper  part  of  it  was  caught  in  the  wire  and  it  was 
upset,  and  the  plaintiff  was  injured.  The  court  said,  the  right  of 
the  telegraph  company  to  string  the  wire  was  subject  to  the  con- 
dition that  it  should  not  incommode  public  travel,  and  it  was  the 
right  of  all  persons  to  pass  and  repass  at  their  pleasure  on  any 
part  of  the  highway  and  not  merely  on  that  part  which  the  town 
is  obliged  to  keep  in  repair.  The  defendant,  therefore,  had  no 
right  to  make  the  obstruction,  and  was  liable  to  the  plaintiff  for 
the  resulting  injury. 

In  a  case  of  Massachusetts,  in  1868,*  the  only  real  question 
was  whether  the  plaintiff  was  guilty  of  contributory  negligence, 
and  subject  to  the  decision  of  this  by  the  jury  it  was  conceded 
that  a  telegraph  company  was  liable  for  an  injury  to  a  traveler 
caused  by  a  wire  having  fallen  from  one  pole  and  hanging  diag- 
onally across  the  street  within  one  or  two  inches  of  the  ground. 
The  plaintiff  tried  to  lead  his  horses  and  wagon  over  it,  but  it 
flew  up,  the  wire  caught  the  axle  and  upset  the  wagon,  a  pole 
was  pulled  down  and  the  horses  took  fright  and  ran  away.  The 
court  said,  it  should  have  been  left  to  the  jury  to  decide  whether 
the  plaintiff  was  exercising  reasonable  care  in  thinking  the  wire 
would  lie  flat  and  in  trying  to  get  over  it. 

It  was  held  in  Pennsylvania,  in  1888,''  that  a  telephone  com- 
pany is  liable  in  damages  for  injuries  caused  by  a  swagging 
telephone  wire  impeding  travel.  Livingston,  J.,  charging  the 
jury  in  the  Lancaster  Common  Pleas,  told  them  that  tele- 
graph lines  over  highways  must  be  put  up  and  kept  so  that  the 
wires  shall  not  impede  or  obstruct  ordinary  travel  or  render  it 
unsafe,  and  that  if  by  neglect  of  those  failing  to  keep  them  so 
injury  is  sustained  by  a  person  passing  over  the  highway  without 
fault  on  his  part,  the  company  owning  the  line  will  be  liable  in 
damages,  and  that  it  is  not  necessary,  in  order  to  show  negli- 

^  Thomas  v.  West.  Union  Teleg.  Varnau,  5  Lancaster  Law  Review, 
Co.,  100  Mass.  156  (1868).  (Pa.)   74,  affirmed  in  s.  c.  5  Ibid.  401, 

^  Pennsylvania     Telephone     Co.    v.     15  Atl.  Rep.  624. 


§  14.]  IN   STREETS   AND   HIGHWAYS.  l6l 

gence  in  allowing  a  wire  to  hang  too  low,  to  prove  that  the  com- 
pany has  been  notified  that  the  wire  is  obstructing  the  streets 
and  has  failed  to  remove  it.  The  charge  was  sustained  by  the 
Supreme  court.' 

It  was  held  in  Colorado  territory  in  1873,"  that  a  company 
engaged  in  putting  up  a  telegraph  line  in  a  city  street  was  guilty 
of  gross  negligence,  when  it  allowed  a  wire  to  hang  within  a  few 
feet  of  the  ground  while  people  were  passing  and  put  up  no  signal 
and  gave  no  warning.  The  jury  were  told  that  they  might  give 
exemplary  damages.  On  writ  of  error,  however,  the  Supreme 
Court  of  the  United  States  said,  that  in  no  view  of  the  case  was 
the  court  justified  in  telling  the  jury  that  exemplary  damages 
could  be  recovered.  The  omission  to  station  flag-signals  or  to 
give  some  other  proper  warning  was  an  act  of  negligence  entit- 
ling the  plaintiff  to  compensatory  damages,  but  there  was  no 
evidence  of  willful  wrong.' 

§  9.  The  Same  Continued — Guy  Wires. — The  same  principle,  of 
course,  applies  to  guy  wires  used  to  support  the  poles  as  to  the 
electric  wires  themselves.  In  a  recent  case  in  the  New  York 
Supreme  court,^  there  was  a  guy  wire  fastened  to  a  sunken  stone 
in  the  edge  of  a  narrow  road  where  persons  would  naturally  be 
compelled  to  travel.  The  wire  was  not  easily  seen  and  was  hid- 
den by  the  leaves  of  trees.  The  plaintiff,  in  passing  another 
man's  wagon,  was  obliged  to  drive  over  the  stone  and  his  wheel 
was  caught  in  the  wire.  It  was  held  that  the  defendant's  right 
to  use  the  highway  was  subject  to  the  right  of  use  for  travel,  and 
that  the  stone  with  the  wire  so  near  the  traveled  part  of  the 
road  made  a  dangerous  snare.  The  court  did  not  consider  the 
plaintiff  guilty  of  negligence  and  held  the  defendant  liable. 

So  also,  in  Louisiana,'  a  telegraph  company  was  held  liable  for 
an  injury  occasioned  by  guy  wires  stretched  across  a  part  of  the 
road  called  neutral  ground  on  which  it  was  forbidden  to  drive. 
The  accident  happened  to  the  driver  of  a  fire  engine,  who  was 
turning  his  engine  to  go  to  a  fire  plug,  which  stood  on  the  neu- 

^  The  decision  was  confined   to   the  ^  West.    Union  Teleg.  Co.  v.  Eyser, 

case  of  the   use   of   the   highway   for  91  U.  S.  495  (1875),  reported  in  a  note 

ordinary   transportation.      The    judge  to  Milwaukee  and  St.  Paul  Ry.  Co.  v. 

said  the    rule   would    not    apply    to    a  Arms,  91  U.  S.  489. 

load  thirty  or  forty  feet   high.     As  to  *  Sheldon    v.   West.    Union    Teleg. 

wires    obstructing   the    moving    of    a  Co.,  51  Hun  591  (1889). 

house,  see  Chapter  V,  §  4,  p.  48.  *  Wilson  v.  Gt.  So.  Teleph.  v.  Teleg. 

^  West.  Union  Teleg.   Co.  v.  Eyser,  Co.,  41   La.   Ann.  104;  6  So.  Rep.  781 

2  Colo.  Ter.  141.  (1S89). 
E.  W.— II. 


l62  ELECTRIC   WIRES  [§  10. 

tral  ground,  and  to  which  he  had  a  right  to  go  for  the  purpose 
of  putting  out  a  fire.  The  court  said,  the  telegraph  company 
ought  to  have  seen  that  injury  might  come  from  putting  wires  so 
low  in  such  a  place,  and  was  therefore  in  fault  and  liable  in 
damages. 

§  10.  Wires  Hanging  Too  Low — Contributory  Negligence. — In  the 
case  of  Dickey  v.  Maine  Telegraph  Company,  when  it  first  came 
before  the  court  in  1857,'  it  appeared  that  a  telegraph  wire 
became  "  slack  and  drooped  so  low"  that  a  stagecoach  in  which 
the  plaintiff,  Mrs.  Dickey,  was  traveling  was  caught  in  it  and 
overturned.  On  a  motion  for  a  new  trial,  after  a  verdict  for  the 
plaintiffs,  the  court  said :  "  It  was  not  suf^cient  for  the  plaintiffs 
to  prove  that  the  defendants  were  in  fault.  To  entitle  themselves 
to  a  verdict  the  plaintiffs  were  bound  to  show  that  there  was  no 
neglect  or  want  of  ordinary  care  contributing  to  the  injury  on 
the  part  of  the  female  plaintiff,"  and  the  court  held  (following 
the  doctrine  of  TJiorogood  v.  Bryan,  which  has  since  been  over- 
ruled''), that  if  the  driver  of  the  stagecoach  were  guilty  of  neglect 
or  want  of  ordinary  care,  the  plaintiffs  would  be  as  much  affected 
thereby  as  if  Mrs.  Dickey  were  the  driver.  It  appeared  that  the 
driver  knew  the  wire  was  too  low  to  pass  under,  and  had  several 
times  lifted  it  while  passing,  and  this  time  he  let  it  remain  in 
front  of  the  stage  while  he  stopped  at  the  post  office  and  got  the 
mails,  and  he  allowed  the  horses  to  start  before  the  wire  was 
removed.  The  judges  thought  he  was  guilty  of  gross  negligence, 
and  set  aside  the  verdict,  but  a  second  verdict  having  been 
rendered  for  the  plaintiffs  on  somewhat  different  evidence  the 
court  allowed  it  to  stand.' 

The  true  rule  in  such  cases  is  clearly  stated,  however,  by  Judge 
Hoar,  in  a  case  in  Massachusetts,^  that  "  if  a  party  with  full 
knowledge  of  the  existence  of  an  obstruction  or  defect  in  a  high- 
way, willfully  or  recklessly  keeps  on,  and  involves  himself  in  a 
danger  which  he  had  no  reasonable  ground  to  believe  he  could 
successfully  encounter,  he  acts  at  his  own  risk  and  must  take  the 
consequences.  But  because  there  is  an  obstacle  to  proceeding,  it 
does  not  follow  that  it  is  not  consistent  with  reasonable  care  to 

^  43  Me.  492.  ner,   47    N.  J.  L.  161    (March,  1885) ; 

^8  C.  B.    114    (1849).     See   Mills   v.  Little,  Receiver  v.  Hacket,  116  U.  S. 

Armstrong,    The     Bernina,    13    App.  366  (October,  1885). 

Cas.  I  (1888);  Bennett  v,   N.  J.   R.   R.  ^  46  Me.  483-488  (1S59). 

&  T.  Co.,  36  N.  J.  L.   225   (1S73);  N.  *  Thomas  v.  West.  Union  Teleg.  Co., 

Y.,  L.  E.  and  W.  R.  Co.  v.  Steinbren-  100  Mass.  156  (186S). 


§  10.]  IN   STREETS   AND   HIGHWAYS  1 63 

attempt  to  proceed."  In  this  case  the  plaintiff,  driving  along  a 
road,  saw  a  wire  hanging  diagonally  across  it  between  two  poles 
two  hundred  feet  apart  and  coming  within  two  or  three  inches  of 
the  surface  of  the  earth.  He  found  it  would  lie  flat  on  the 
ground  the  whole  distance  across  the  traveled  way,  and  the 
court  held  that  it  was  properly  left  to  the  jury  to  say  whether 
the  plaintiff  was  justified  in  supposing  that  he  could  lead  his  horses 
and  wagon  safely  over  it,  and  whether  he  used  due  care  in 
attempting  to  do  so. 

In  the  Varnau  case  in  Pennsylvania*  the  judge  was  sustained 
in  charging  the  jury  that  if  the  plaintiff  saw  the  wire  or  knew  it 
was  there  and  he  could  not  have  driven  safely  under  it  and 
could  have  driven  on  a  lower  road,  his  failure  to  do  so  would  be 
such  negligence  as  would  prevent  a  recovery  ;  but  if  he  did  not 
know  or  see  it  was  there,  his  failure  to  take  the  other  road  would 
not  prevent  recovery  by  the  plaintiff.  It  was  also  held  in  this 
case,  that  where  a  traveler  on  a  highway  finds  his  wagon  caught 
by  a  wire  hanging  too  low,  if  he  does  the  best  he  can  in  the  emer. 
gency  to  extricate  himself,  the  defendant  will  not  be  relieved 
from  liability  because  the  plaintiff  might  have  found  a  way  of 
escape.  When  a  man  finds  himself  placed  in  a  position  of 
danger  by  the  negligence  of  another  without  his  fault,  and,  not 
having  time  to  deliberate,  happens  to  choose  a  way  to  escape 
which  is  not  the  best,  the  law  will  not  impute  to  him  contributory 
negligence  so  readily  as  if  he  had  time  to  choose  with  judgment. 
All  that  it  requires  of  him  is  to  do  as  a  prudent  man  would 
under  the  circumstances. 

So  also  in  a  recent  case  in  Louisiana,'  it  appeared  that  a  dray- 
man, th^  plaintiff's  fellow-servant,  knew  that  an  electric-light  wire 
was  hanging  low,  but  drove  under  it  in  an  emergency  when  the 
street  was  obstructed.  He  was  driving  a  team  of  five  mules 
drawing  a  wagon  with  a  large  tank  upon  it,  and  it  was  held  that 
the  rule  as  to  contributory  negligence  did  not  apply.  The  court 
said:  "  Even  if  there  had  been  error  of  judgment  in  the  emergency 
of  the  moment,  it  would  not  have  been  carelessness  or  neglect ; 

1  Penna.    Teleph.  Co.  v.   Varnau,   5  ble  unless   it  is   also  shown  that  they 

Lane.  Law  Rev.  71,  401  ;   15   Atl.  Rep.  were   put  up   at  the  same   time   with 

624.  those  that  fell.     West.    Union    Teleg. 

Where     it    is    attempted    to    show  Co.  v.  Levi,  47  Ind.  522. 

negligence  in  allowing  poles   to   fall,  "^  Williams   v.    Louisiana  Light  and 

evidence    showing  that  poles  40  or  60  Power    Co.,  8   So.    Rep.   936;  43    La. 

rods  away  did   not  fall,  is  not  admissi-  Ann.  (March  23,   1891).                     ^ 


164  ELECTRIC   WIRES  [§  II. 

had  the  plaintiff  freely  chosen  to  drive  under  the  low-swinging 
wire,  and  had  he  negligently  driven  the  tank  against  it,  the  prin- 
ciple invoked  would  apply.  In  the  haste  of  the  moment  he  did 
that  which  possibly  any  prudent  man  would  have  done." 

It  is  not  to  be  expected  that  a  man  in  driving,  or  even  in  walk- 
ing along  a  street,  will  see  a  small  wire  stretched  across  the  way 
or  lying  upon  the  pavement  when  he  has  a  right  to  suppose  that 
the  street  is  unobstructed;  and  the  fact  that  he  runs  into  such  a 
wire  is  not  held,  as  a  matter  of  law,  to  be  contributory  neg- 
ligence, but  the  question  whether  he  exercised  due  care  will  be 
left  to  the  jury.  In  a  recent  case  in  Indiana'  the  Supreme  court 
overruled  a  demurrer  to  a  declaration  which  alleged  that  an  elec- 
tric-light wire  was  negligently  allowed  to  remain  on  and  along  a 
sidewalk,  and  that  while  plaintiff  was  v/alking  carefully  along  the 
sidewalk  without  her  fault  her  foot  caught  and  became  entangled 
in  the  wire  and  she  was  injured. 

§  11.  Defective  Materials. — If  the  posts  are  made  of  poor  mate- 
rial or  are  not  strong  enough  to  bear  the  weight  of  the  wires 
placed  upon  them  and  the  strains  to  which  it  may  be  reasonably 
expected  that  they  will  meet  with,  those  who  maintain  them  are 
liable  in  damages  for  injuries  caused  by  the  fall  of  the  posts  and 
wires. 

It  was  so  held  in  the  case  in  Louisiana  just  referred  to^  where 
the  plaintiff  was  injured  by  the  fall  of  an  electric-light  pole  which 
was  dragged  down  by  the  wire  being  caught  by  a  passing  dray. 
It  appeared  that  the  pole  was  not  of  the  diameter  required  by 
the  contract  with  the  city,  and  that  it  was  not  made  of  heart 
timber  as  it  should  have  been,  and  because  of  the  sap  it  was 
badly  decayed  near  the  ground,  and  when  the  wire  was  caught 
the  pole  was  pulled  down  and  fell  upon  the  plaintiff,  the  court 
said  the  pole  was  defective  originally,  and  that  ordinary  care  must 
be  exercised  against  the  weakening  and  decay  of  timber  from 
age  or  the  action  of  the  elements.     The  company  was  held  liable. 

In  this  case  the  defendant  was  at  fault  in  letting  the  wire  hang 
within  fifteen  feet  of  the  ground,  so  that  it  was  caught  by  a 
heavily  loaded  wagon;  but  it  has  been  held  that  where  the  proxi- 
mate cause  of  the  accident  is  an  unexpected  external  force  for 
which  the  telegraph  company  is  not  responsible,  the  question  of  the 
strength  of  the  materials  used  is  not  involved  in  the  case.     In 

1  Brush    Electric  Lighting  Co.  v.  Kelley,  126  Ind.  220;    25  N.  E.  Rep.  812; 
9  Ry.  and  Corp.  L.  J.  135  (1890). 
^  Page  163,  note  2. 


§  12.]  IN    STREETS   AND    HIGHWAYS  165 

Allen  V.  Atlantic  and  Pacific  Telegraph  Co.;  a  pole  standing  far 
enough  from  the  traveled  portion  of  the  highway  to  be  safe  un- 
der ordinary  circumstances  was  struck  by  a  wagon  drawn  by 
runway  horses  and  fell  down  so  that  the  wires  were  thrown  across 
the  road  in  such  a  manner  that  they  caught  the  plaintiff's  car- 
riage and  upset  it,  and  the  plaintiff  was  injured.  The  court  held 
that  the  plaintiff  could  not  recover  if  the  collision  were  the  proxi- 
mate cause  of  the  breaking  and  fall  of  the  pole,  and  that  the 
judge  ought  to  have  charged  the  jury  that  if  the  pole  would  not 
have  fallen  without  the  collision,  the  plaintiff  could  not  recover, 
and  that  the  jury  ought  not  to  have  been  left  with  the  impression 
that  although  the  collision  was  the  cause  of  the  breaking  of  the 
pole  they  "  could  find  a  verdict  for  the  plaintiff  on  account  of 
their  speculations  as  to  the  original  deficiency  in  the  strength  of 
the  telegraph  pole  to  resist  such  a  collision." 

A  telegraph  company  setting  one  of  its  own  servants  to  work 
on  a  defective  pole  has  been  held  liable  for  injuries  arising  from 
the  defect,  if  with  proper  care,  the  company  might  have  discovered 
it  and  the  servant  was  free  from  negligence.  In  a  case  in  the 
Supreme  Court  of  New  York^  it  appeared  that  the  plaintiff's 
intestate,  while  in  the  employ  of  defendant,  was  sent  to  put  a  new 
insulating  peg  in  a  cross-arm  on  one  of  the  defendant's  telegraph 
poles.  The  cross-arms  had  holes  bored  through  them  in  which 
pegs  were  set  on  which  to  place  the  insulators.  One  hole  was 
about  eight  inches  from  the  pole,  and  the  other  about  two  feet 
nine  inches.  While  the  man  was  putting  the  peg  in  the  outer 
hole,  the  arm  broke  at  the  other  hole,  causing  him  to  fall.  There 
was  evidence  that  the  arm  had  been  on  the  pole  from  six  to 
ten  years,  and  was  "  cross-grained  and  brittle  "  where  it  broke. 
It  was.  held,  that  whether  the  defendant  was  negligent  in  not  dis- 
covering the  defect,  and  whether  the  intestate  should  have  ob- 
served and  guarded  against  the  defect,  and  whether  he  placed 
more  weight  on  the  cross-arm  than  he  should  have  done,  were 
questions  for  the  jury. 

§  12.  Damages  Caused  by  Severe  Storms. — A  company  main- 
taining a  line  of  telegraph  or  other  wires  and  poles  is  only 
bound  to  exercise  reasonable  care  in  the  construction  and  main- 
tenance of  its  line,  and  is  not  liable  for  the  breaking  of  its  poles 
by  a  storm  of  extraordinary  severity  or  by  some  unexpected 
external  force.     The  company  is  not  held  to  insure  the  safety  of  its 

»2i  Hun  22  (1880). 

'Flood  V.  West.  Union  Teleg.   Co.,  68  Hun  619  (1891). 


l66  ELECTRIC   WIRES  '  [§15- 

poles,  but  is  only  liable  in  case  of  actual  negligence  of  reasonable 
precautions.' 

It  was  so  held  with  reference  to  a  storm  by  the  New  York 
Court  of  appeals  in  Ward  v.  Atlantic  and  Pacific  Telegraph  Co? 
The  court  said :  "  The  defendant  is  not  absolutely  bound  to 
make  its  posts  in  the  street  so  strong  and  secure  that  they  cannot 
be  blown  down  or  broken  by  any  storm.  It  does  not  insure  the 
safety  of  travelers  in  the  streets  from  injuries  by  its  posts  lawfully 
placed  there.  It  is  bound  to  use  reasonable  care  in  the  construc- 
tion and  maintenance  of  its  line,  so  that  no  traveler  shall  be  in- 
jured by  it,  and  the  amount  of  care  must  be  proportioned  to  the 
amount  of  danger  and  the  liability  to  accident.  The  poles  must 
be  strong  enough  to  withstand  such  violent  storms  as  may  be 
reasonably  expected,  but  they  are  not  required  to  be  so  strong 
that  no  storm  can  break  them,  or  to  withstand  such  storms  as 
reasonable  foresight  and  prudence  could  not  anticipate." 

§  13.  Dangerous  Currents. — Electric  wires  carrying  a  dangerous 
current  must  be  carefully  kept  in  place  and  properly  insulated, 
and  those  who  maintain  them  are  liable  to  the  public  and  to 
their  own  servants  for  negligence  in  this  respect.  It  has  recently 
been  held,  for  example,  in  Michigan,'  that  it  is  negligence  for  an 
electric-light  company  so  to  string  its  wires  that  those  of  one 
circuit  cross  those  of  another,  and  by  a  slight  sagging  come  in 
contact  with  them,  and  to  maintain  a  live  current  in  one  circuit 
while  its  own  men  are  at  work  handling  the  wires  of  the  other. 

In  New  York  where  by  statute  it  was  provided  that  a  commission 
should  be  appointed  to  take  charge  of  and  control  all  electric 
wires  in  the  streets  and  to  cause  them  to  be  put  underground, 
it  has  been  held  that  an  electric-light  company  is  not  excused 
from  keeping  its  wires  in  perfectly  safe  condition  by  the  fact  that 
this  commission  has  refused  permission  to  make  necessary  re- 
pairs, and  that  if  the  municipal  authorities  are  about  to  remove 
the  wires  as  dangerous  to  the  public,  the  refusal  of  the  commis- 
sion is  not  a  good  ground  for  injunction  against  the  removal  of 
the  wires.  Wires  not  properly  insulated,  the  court  said,  were 
dangerous  and  a  nuisance,  and  were  subject  to  be  abated.* 

Electric  railway  wires  carry  a  powerful  current  which  is  dan- 

1  See  Allen  v.  A.  &  P.  Teleg.   Co.,  Co..  82   Mich.  457 ;  46  N.  W.  Rep.  787 

above  referred  to,  §  11,  note  3.  (1890). 

*7i    N.    Y.    81;  27    Am.    Rep.    10        *  U.    S.   Illuminating  Co.  v.   Grant, 

(1877).  55  Hun  222;   27  N.  Y.St.  Rep.  767; 

'  Kraatz    v.    Brush     Electric     Light  7  N.  Y.  Supp.  788. 


§  13.]  IN   STREETS   AND   HIGHWAYS  167 

gerous  under  certain  circumstances,  and  a  company  using  such  a 
wire  is  liable  for  injuries  which,  with  due  care,  it  might  have  pre- 
vented, even  though  the  immediate  cause  of  the  injury  may  have 
been  an  accident.  Maintaining  such  a  current  on  a  bare  wire  in 
the  public  streets,  they  are  bound  to  use  reasonable  precautions 
against  accidents,  and  must  take  proper  care  to  keep  their  wires 
from  falling  or  from  coming  in  contact  with  other  wires.  It  can- 
not be  said  that  they  are  bound  in  every  case,  and  in  the  absence 
of  statutory  or  municipal  regulations,  to  maintain  guard  wires  so 
as  to  prevent  telegraph  wires  from  falling  upon  the  trolley  wires  ; 
but  it  has  been  held  that  where  a  telephone  wire  crossing  over  a 
trolley  wire  is  obviously  defective,  so  as  to  arrest  the  notice  of  a 
prudent  man  operating  the  railroad,  and  no  precaution  is  taken 
to  guard  against  its  fall,  if  the  wire  does  fall,  and  the  current  is 
carried  off  and  injures  a  person  or  an  animal  in  the  street,  the 
railroad  company  is  liable  as  well  as  the  telephone  company. 
This  was  held  in  a  recent  case  in  Tennessee,'  in  which  the  imme- 
diate cause  of  the  fall  of  the  wire  was  the  breaking  of  a  telephone 
pole  by  the  fall  of  a  burning  building.  Turney,  C.  J.,  said  : 
"  While  it  was  the  pi:imary  duty  of  the  telephone  company  to  see 
that  wires  were  in  a  reasonably  safe  and  sound  condition,  and 
protected  against  the  contingency  of  falling,  it  was  also  a  duty 
of  the  electric  company  to  see  that  its  trolley  wire  was,  in  like 
manner,  protected  from  such  contingency.  While  it  was  the  duty 
of  one  company  not  to  use  unsound  and  unprotected  wires,  it 
was  equally  the  duty  of  the  other  not  to  operate  its  road  under 
such  defective  machinery."* 

^  United  Electric  Ry.  Co.  v.  Shelton,  phone  wires  from  coming  in  contact 

14   S.  W.    Rep.   863    (Sup.   Ct.   Tenn.  with    electric    light    wires,    see    Ne- 

1890).  braska   Telephone    Co.  v.  New  York 

*  For  a  case  relating  to  the  precau-  Gas  and  El.  Lt.  Co.,  17  Neb.  284;    43 

tions  proper  to  be  used  to  keep  tele-  N.  W.  Rep.  126.  See  Chapter  XIV,  §  7. 


,  TABLE  OF  CASES. 


Abendroth   v.    Manhattan    R.    R. 

Co.,  122  N.  Y.  1 62,  83,  105 

Abendroth  v.  Met.  Elev.  R.  R.  Co., 

54  N.  Y.  Super.  Ct.  417 62,  65 

Abendroth  v.  Met.  Elev.  R.  R.  Co., 

122  N.  Y.  1 105 

Adams  v.  Chicago,  B.  and  N.  R. 

R.  Co.,  39  Minn.  286 15.  98 

Allen  V.  Atlantic  and  Pacific  Teleg. 

Co.,  21  Hun  22 156,  159,  165,  166 

American    Rapid    Teleg.    Co.    v. 

Hess,  125  N.  Y.  641,  58  Hun  610 

57,  133 
American   Teleph.  and  Teleg.  Co. 

V.  Pearce,  71  Md.  535.  .  .  .81,  131,  137 
Am.  Union  Teleg.  Co.  v.  Town  of 

Harrison,  31  N.  J.  Eq.  627 

30,  31,  38,  40,  43 
Anderson   v.  Turbeville,   6   Cold. 

150 65 

Appeal  of  Meadville  Fuel  Gas  Co., 

4  Atl.  Rep.  733 II 

Arbenz  v.  Wheeling  and  Harris- 
burg  R.  R.  Co.,  33  W.  Va.  I.  .45,  99 
Armstrong  v.  Grant,  31   N.  Y.  St. 

Rep.  248 ;  50  Hun  220 57 

Atl.  and  Pac.  Teleg.  Co.  v.  Chicago 

R.  I.  and  P.  R.  R.  Co.,  6  Biss. 

158 13O'  132,  137.  158 

Atlantic  Teleg.  and  Teleph.  Co.  v. 

Smith,  I  Am.  R.  R.  and  Corp. 

Rep.  73 82,  131,  137 

Atl.  and  Pac.  Teleg.  Co.  v.  Union 

Pacific  Teleg.  Co.,  i   Fed.  Rep. 

745 138 

Atlantic  City  Water  Works  v.  At- 
lantic City,  39  N.  J.  Eq.  366,  374.  8,  9 
Atlantic  City  Water  Works  Co.  v. 
Consumers'  Water  Co.,  44  N.  J. 
Eq.  427-432 8,  10 


PAGE 

Attorney-Gen'l  v.  Edison  Teleph. 
Co.,  6  Q^  B.  Div,  244 122 

Attorney-Gen'l  v.  United  King- 
dom Elect.  Teleg.  Co.,  30  Beav. 

2S7 46,51 

Attorney-Gen'l   v.    Lombard   and 

South  St.  Pass.  R'y  Co.,  32  Leg. 

Int.  (Pa.)  238 ' 15 

Attorney-Gen'l  v.  Metrop.  R.    R. 

Co.,  125  Mass.  515 15,  96 

B.  and  O.  Teleg.  Co.  v.  Morgan's 

La.  and  Tex.  Teleg.  Co.,  37  La. 

Ann.  833 136 

B.    and    O.    Teleg.    Co.    v.  West. 

Union  Teleg.  Co.,  24  Fed.   Rep. 

319 135 

B.  and  W.  Railroad  Co.  v.  Hartley, 

67  111.  439 80 

Barber  v.  Saginaw  Union   St.  R. 

R.  Co.,  83  Mich.  299 115 

Barnett   v.  Johnson,  15  N.  J.  Eq. 

481 63,  67,  136 

Barnej'  v.  Keokuk,  94  U.  S.  324.  .     65 
Bennett  v.  N.  J.  R.  R.  and  T.  Co., 

36  N.  J.  L.  225 162 

Bigelow  V.  Perth  Amboy,  i  Dutch., 

25N.  J.  L.  297 33 

Biscoe  V.  Great  Eastern  R'y  Co., 

L.  R.  16  Eq.  636 157 

Bissell  V.  N.  Y.  Central  R.  R.  Co., 

23  N.  Y.  61 62 

Bliss  V.  Ball,  99  Mass.  597 12,  62 

Bloomfield  and  R.  N.  Gas  L.  Co. 

V.  Calkins,  62  N.  Y.386 13,  87,  88 

Board  of  Trade  Teleg.  Co.  v.  Bar- 
nett, 107  111.  507 75,  79,  80,  84,  97 

Bordentown  and  South  Amboy 
Turnpike  Co.  v.  Camden  and 
Amboy  R.  R.  and  Trans.  Co.,  17 

N.J.  L.  314 157 

(169) 


T70 


TABLE   OF   CASES. 


PAGE 

Borough  V.  Telephone  Co.,  22  W. 
N.  Cas.  572 41 

Boston  V.  Richardson,  13  Allen 
146 15,  62,  87,  88 

Boulton  V.  Crowther,  2  Barn,  and 
Cress.  703 157 

Briggs  V.  Lewiston  and  Auburn  R. 
R.  Co.,  79  Me.  363 96,  102 

British  Cast  Plate  Mfrs.  v.  Mere- 
dith, 4  Term  Rep.  794 157 

Brooklyn  Central  R.  R.  Co.  v. 
Brooklyn  City  R.  R.  Co.,  32 
Barb.   358 36 

Brooklyn  City  R.  R.  Co.  v.  Coney 
Island  R.  R.  Co.,  35  Barb.  364.  .     96 

Broome  v.  N.  Y.  and  N.  J.  Teleph. 
Co.,  42  N.  J.  Eq.  141 .77,  78,  122 

Broome  v.  N.  Y.  and  N.  J.  Teleph. 
Co.,  49  N.  J.  L.  624 33,  79,  124 

Brown  v.  Duplessis,  14  La.  Ann. 
842 96 

Brush  Electric  Illuminating  Co.  v. 
Subway  Co.,  15  N.  Y.  8i 58 

Brush  Electric  Light  Co.  v.  Jones 
Brothers'  Electric  Light  Co.,  23 
W.  L.  Bull.  329 32,  43 

Brush  Electric  Lighting  Co.  v. 
Kelley,  126  Ind.  220 164 

Burlington  v.  Dennison,  42  N.  J. 
L-  165 33 

Butler  V.  Passaic,  44  N.  J.  L.  171.  .     33 

California  St.  Teleg.  Co.  v.  Alta 
Teleg.  Co.,  22  Cal.  398 127 

Camden  Horse  R.  R.  Cq.  v.  Cit- 
izens' Coach   Co.,  31   N.  J.  Eq. 

525   15'  7i»98 

Campbell  v.  Met.  R.  R.  Co.,  82  Ga. 
320 96,97 

Carli  V.  Stillwater  St.  Ry.  Co.,  28 
Minn.  373 16 

Carson  v.  Central  R.  R.  Co.,  35 
Cal.  325 96 

Cent.  Branch  Union  Pacific  R.  R. 
Co.  V.  West.  Union  Teleg.  Co., 
3  Fed.  Rep.  417 138 

Cent.  Union  Teleg.  Co.  v.  Sprague 
Electric  Railway  and  Motor  Co. 
and  the  Akron  Street  Railway 
Co.,  Ohio  Com.  Pleas ;  .  .  .    143 

Cent.  Un.  Teleph.  Co.  v.  Brad- 
bury, 106  Ind.  I 122 


PAGE 

Chamberlain  v.  Elizabethport,  etc., 

Co.,  41   N.  J.  Eq.  43 14 

Chambers  v.  Ferry,  i  Yeates  167.    115 
Chesapeake    and  Potomac  Teleg. 

Co.  V.  Bait,  and  Ohio  Teleg.  Co., 

66  Md.  399 122 

Chesapeake  and  Potomac  Teleph. 

Co.  V.  MacKenzie,  21  Atl.  Rep. 

690;  74  Md 81 

Chicago  and  E.  I.  R.  Co.  v.  Loeb, 

118  111.  203 45 

Chicago  and  Vincennes  R.  R.  Co. 

V.  People,  92  111.  21 15 

Cine.    Inclined    Plane  Ry.  Co.  v. 

City      and      Suburban     Teleph. 

Assn.,  26  Week.  Bull.  8 151,  152 

Cincinnati  St.   R.  R.  Co.  v.  Cum- 

minsville,  14  Ohio  St.  523 96,  97 

Cincinnati  St.  R.  R.  Co.  v.  Smith, 

29  Ohio  St.  291 10 

Citizens'  Water  Co.  v.  Bridgeport 

Hydraulic  Co.,  55  Conn,  i 8 

Citizens'    Coach    Co.    v.    Camden 

Horse    R.    R.   Co.,  33  N.  J.  Eq. 

267 15,71.98 

Citizens'  St.  R'y  Co.  v.  Jones,  34 

Fed.  Rep.  597 1 1 

Citizens'  Water  Co.  v.  Bridgeport 

Hydraulic  Co.,  55  Conn,  i 9 

City  V.  Electric  Light  Co.,  8  C.  C. 

Rep.   (Pa.)   178 40,  41 

City  V.  Teleg.  and  Teleph.  Co.,  40 

La.  Ann.  41 36 

City  and   Suburban  Teleg.  Assoc. 

V.  Cincinnati  Inclined  Plane  Ry. 

Co.,  23W'kly  Bull.  165 151,152 

Citv  of  Hannibal  v.  Missouri  and 

Kansas  Teleg.  Co.,  31  Mo.  App. 

23 36 

City  of   St.  Louis  v.    Bell  Teleph. 

Co.,  96  Mo.  623   23,  74 

Cleveland  and  Pittsburg  R.  R.  Co. 

V.  Speer,  56  Pa.  St.  325,  334 157 

Clinton  v.  Cedar   Rapids  and  M. 

R.  R.  Co.,  24  Iowa  455 99 

Clinton  v.  Clinton  and   Lyons  H. 

R.  R.  Co.,  37  Iowa  61 96 

Commonwealth  v.  Boston,  97  Mass. 

555 24,  36,46 

Commonwealth   v.   Central    Pass. 
R'y  Co.,  52  Pa.  St.  506 31 


TABLE    OF   CASES. 


171 


TAGX 

Cook   V.    City   of    Burlington,    30 

Iowa  94 15 

Cosby  V.  Owenboro,  10  Bush  288.  99 
Costigan  v.   Penna.  R.  R.  Co.,  N. 

J.  Sup.  Ct.,  15  N.  J.  L.  J.  90....  99 
Coverdale  v.   Charlton,  42    B.    D. 

104 44 

Craig  V.  Rochester  City  and  B.  R. 

R.  Co.,  39  N.  Y.  404 97,  98 

Crawford  v.  Delaware,  7  Ohio  St. 

459 65,  105 

Cumberland     Telephone     Co.    v. 

United  Electric  Railway  Co.,  42 

Fed.  Rep.  273 150 

Daly  V.  Ga.  So.  and  Fla.  R.  R.  Co., 

80  Ga.  793 II,  98 

Damour  v.  Lyon,  44  Iowa  276.  ...  15 
Davenport  V.  Kleinschmidt,  i3Pac. 

Rep.  249 II 

Davis  V.  Mayor  of  New  York,  14 

N.  Y.  506 15,45 

Davison  v.  Gill,  i  East  69 43 

Delhi  V.  Evans,  36  Ind.  90 99 

D.  and  R.  G.  R.  R.  Co.  v.  Bourne, 

II  Colo.  59 98 

Denver   and    S.   F.   R.  R.  Co.  v. 

-Domke,  II  Colo.  247 100 

Des  Moines  St.    R.  R.  Co.  v.  Des 

Moines  Broad  Gauge  R.  R.  Co., 

74  Iowa  585 105 

Detroit  v.    Detroit    R.   R.  Co.,  43 

N.  W.  Rep.  447 30 

Detroit    City  R.  R.    Co.  v.  Mills, 

Circuit    Court   of    Wayne   Co., 

Mich.,  84  Mich.  634.  .  .  .1,  9,  no,  116 
Dickey  v,  Maine  Teleg.  Co.,  43  Me. 

492  ;  46  Me.  483 159,  162 

Dodge  v.  Davenport,  57  Iowa  560  13 
Domestic  Teleg.  and   Teleph.  Co. 

v.  Newark,  49  N.  J.  L.  344-346.  .8,  26 
Drady  v.  Des  Moines  and  Ft.  O.  R. 

R.  Co.,  57  Iowa  393 99 

Drake  y.  Hudson  River  R.  R.  Co., 

7  Barb.  508 45,99 

Dubuque  v.  Maloney,  9  Iowa  450  12 
Dusenbury  v.  Mutual   Teleg.  Co., 

II  Abbott's  New  Cases  440 78 

East  End  R.   R.  Co.  v.  Doyle,  88 

Tenn.   747 90-97?  102 

East  Portland  v.  Multomah,  6  Ore- 
gon 62 8 


PAGE 

East  River  Electric  Light  Co.  v. 
Grant,  25  Jones  &    S.  553 56 

East  Tennessee  Teleph.  Co.  v. 
Knoxville  St.  R'y  Co.,  Chan- 
cery, Tenn    149 

East  Tennessee  Teleph.  Co.  v.  The 
Chattanooga  Electric  Railway 
Co.,    Chancery,  Tenn 144 

Edison  General  Electric  Light  Co. 
v.  Cincinnati,  3  Goebel    (Ohio) 

304 55 

Eichel  v.  Evansville  St.  R.  Co.,  78 
Ind.  261 15,  96 

Electric  Construction  Co.  v.  Hef- 
fernan,  34  N.  Y.  S.  R.  430.  .  .  .  24,  90 

Electric  Impr.  Co.  v.  San  Francis- 
co, 45  Fed.   Rep.  593 39 

Electric  Impr.  Co.  v.  Scannell,  45 
Fed.  Rep.  596 40 

Electric  Light  Co.  v.  City,  4  Del. 

(Pa.)  117 32,  40.  41 

Electric  Ry.   v.  Grand  Rapids,  84 

Mich.  257 32,  42,  116 

Electric  Tel.  Co.    v.  Overseers  of 

the  Poor  of  Salford,  34  L.  J.  (N. 

S.),  Magistrates'  Cases  146 77 

Elliott  V.  Fairhaven  and  Westville 

R.  R.  Co.,  32  Conn,  579 96 

Ellis  V.  Sheffield  Gas  Co.,  23  L.  J. 

Q^  B.  42 87 

Ely  V.  Campbell,  59  How.  Pr.  333  12 
Farrell  v.  Mayor,  etc.,  of  N.  Y.,  5 

N.Y.  Supp.  672 12 

Farrell  V.Winchester  Ave.  Ry.  Co., 

61  Conn.   127 113 

Finch  V.  Riverside  and  Arlington 

R.  R.  Co.,  87  Cal.  597 96 

Flanagan  v.  Plainfield,  44  N.  J.  L. 

118 41 

Fletcher  v.  Rylands,  L.  R.,  i   Ex. 

265 159 

Flood  v.  West.  Union   Teleg,  Co., 

68  Hun  619 165 

Florida    Southern    R.    R.    Co.    v. 

Brown,  23  Fla.   104 98 

Fobesv.  Rome,  Watertown  and  O. 

R.  R.,  121  N.  Y.  505 63,  99,  105 

Ford  V.  Chicago  and  N.  W.  R.  R. 

Co.,   14   Wis.  616 100 

Forsythe  v.  B.  and    O.  Teleg.  Co., 

12  Mo.  App.  494 73»  84 


1/2 


TABLE   OF   CASES, 


PAGE 

Galbreath  v.  Armour,  4  Bell  App. 

Cas.  374 15.24.87 

Gaslight  and  Coke  Co.  v.  Vestry 

of  St.  Mary  Abbott's,  15   Q^    B. 

D.  1 157 

Gay  V.  Mutual   Union  Teleg.    Co., 

12  Mo.    App.  4S5 45,73,84 

Gilbert's  Case,  70  N.  Y.  361 134 

Gilbert  v.  Greeley,  S.  L.  and  P.  R. 

R.  Co.,  13  Colo.  501 100 

Giordano  v.  Manhattan  R.  R.  Co., 

31   N.  Y.  St.  Rep.   134 63,  65,  105 

Glasby  v.  Morris,  18  N.  J.  Eq.  72.  .  62 
Goodson   V.    Richardson,  L.  R.,  9 

Ch.  App.  221 89 

Grand  Rapids  and  I.  R.  Co.  v.  Hei- 

sel,  38  Mich.  62 96,  97 

Grand  Rapids,  etc.,  R.    R.    Co.    v. 

Heisel,  47  Mich.  393 no 

Grand  Rapids  Electric  Teleg.  Co. 

V.  Grand    Rapids,    Edison,  etc., 

Co.,  33  Fed.  Rep.  659 10 

Gray  v.  St.  Paul   and  Pac.  R.   R. 

Co.,  13  Minn.  315 98 

Green  v.  Cape  May,  41  N.  J.  L.  45  33 
Halsey  v.  Rapid  Transit  St.  R.  Co., 

47  N.   J.  Eq.  380 20 

33,  66,  71,  78,  79,  90,  95,  98,  107,  III 
Harrison  v.  Mt.  Auburn  Cable  R. 

R.  Co.,  17  Week.  Bull.   265 104 

Hauss  Lighting  Co.  v.  Jones  Bros. 

Elec.  Co.,  23  Week,  Bull.  137.  .32,  43 
Haynes  v.  Thomas,  7  Ind.  38. .  .65,  105 
Henkel  v.  Detroit,  49  Mich.  249.  .  61 
Hewett  V.  West  Union  Teleg.  Co., 

4  Mackay  (D.  C.)  424.  .  .  .  .45,  76,  132 
Higbee  v.  C.  and  A.  R.  R.  Co.,  20 

N.  J.  Eq.  435,  439 62 

Hiller  v.  A.  T.  and  S.  F.  R.  R.  Co., 

28  Kan.  635 96 

Hinchman  v.  Paterson  Horse  R.  R. 

Co.,  17  N.  J.  Eq.  75 .  .  15,  71,  96,  98, 100 
Hine  v.  N.  Y.  El.  R.  R.  Co.,  27  N. 

Y.  St.  R.  R.  303 62 

Hiss  V.  Balto.  and  Hampden  Pass 

R.  Co.,  52  Md.  242 15,  96 

Hobart  v.  Milwaukee  City  R.  R. 

Co.,  27  Wis.   194 96,  100 

Hoboken  Land  and  Improvement 

Co.  V,  Hoboken,  36  N.  J.  L.  540, 

551 66,  105 


PAGE 

Hoboken   Land   and   Imp.  Co,  v. 

Kerrigan,  31  N,  J.  L.  13 62 

Hochalter  v.  Manhattan  R,  R.  Co,, 

31  N,  Y,  St.  Rep.  112 63,  64,  IDS 

Hockett  V.  State,  105  Ind.  250.  .  . .   122 
Hodges  V.   Baltimore  Pass,  R.  R, 

Co,,  58  Md.  603 96 

Hogencamp  v.  Paterson  H.  R.  R. 

Co.,  17  N.  J.  Eq.  S3 96 

Hudson  River  Teleph.  Co.  v.  Wa- 

tervHet  Turnpike  Co.,  56  Hun  67 

118,  144,  146 
Hudson  Teleph.  Co.  v.  Jersey  City 

49  N.  J.  L.303 35,46 

Hunt  V.  Chicago  Horse  and  Dum- 
my R.  R,  Co.,  121   111.  638 31 

Hussner  v.  Brooklyn   City  R,   R, 

Co.,  114  N,  Y.  433 96,  102 

Indianapolis  v.    Indianapolis    Gas 

Light  Co.,  66  Ind.  396 12 

Indiana  and  Cin.  R.  R.  Co.  v.  Law- 

renceburgh,  34  Ind.  304 30 

Indianapolis  B,  and  W.  R.  R.  Co. 

V.  Hartley,  67  111.  479 97 

Indianapolis  Cable  St,  R.  R.  Co. 

V,  Citizens'  St.  R.  R,  Co.,  127  Ind.  _ 

369 II,  104 

In  re  Rochester  Electric  Ry.  Co., 
33N.  Y.St.  Rep.  695;  123  N.Y. 

351 30.34.  "S 

In  re  Third  Ave.  R,  R.  Co.,  24  N. 

E.  Rep.   951;  121   N,    Y.   336.  . 

104,  118 
Iron  Mountain  R.  R.  Co.  v.  Bing- 
ham, 87  Tenn.  522 1 1,  97 

Irwin  V.  Great  South  Teleg.  Co., 

37  La.  Ann.  63 45 

Jackson  County   Horse  R.  R.  Co. 

V.   Rapid   Transit  Co.,  24   Fed. 

Rep.  306 9 

Jersey  City  and  Bergen  R.  R.  Co. 

V.  Jersey  City  and  Hoboken  R. 

R.   Co.,   20   N.   J.  Eq.    61 

14,  15,  21,  30,  96,  98,  100 
Jersey  City  v.  Jersey  City  Bergen 

St.   R'y   Co.,  N.  J,  Law  Journal 

for  March,  1892 41 

Johnson     v,     Thompson-Houston 

Co.,  7  N,  Y.  Supp.  716 89 

Johnson     v.     Thompson-Houston 

Electric  Co.,  54  Hun  469 24 


TABLE   OF   CASES. 


1/3 


PAGE 

juIia  Building  Association  v.  Bell 
Teleph.  Co.,  88  Mo.  258 

24.  45.  74.  75.  84.  94.  99.  108.  136 
Kansas  v.  Baird,  98  Mo.  215  ;  11  S. 

W.  Rep.   243 30 

Kellinger  v.  Fortj-second  St.,  etc., 

R.  R.  Co.,  50  N.  Y.  206 96,  98 

Kincaid  v.  Indiana  Nat.  Gas.  Co., 

121  Ind.  577 13,  89 

Kistner  v.  Indianapolis,   100    Ind. 

210 16 

Koch    V.    North    Ave.    Ry.    Co. 

(Md.),  23  Atl.  Rep.  463 113 

Kowalski    v.    Newark     Pass.    R'j 

Co.,  15  N.  J.  Law  Journal  50.  .  . 

47,  154,  157 
Kraatz   v.    Brush    Electric    Light 

Co.,  82  Mich.  457 166 

Lackland  v.  R.  R.  Co.,  34  Mo.  259 

74-  9^  97,  99 
Lahr  v.  Metropolitan  Elev.  R.  R. 

Co.,  104  N.  Y.  268 

13.  63,  64,  S3,  98,  105 
Lamm  v.  Chicago,  St.    Paul  and 

M.  R.  R.  Co.,  45  Minn.  71 99 

Lancaster  v.   Edison    Electric  111. 

Co.,  8  C.  C.  Rep.  178 40,  41 

Lawrence   v.    Great  Western  R'j 

Co.,  16  Q^  B.  643 157 

Lewis  V.  Jones,  i   Pa.  St.  336 115 

Little,  Receiver  v.  Hacket,  116  U. 

S.  366 162 

Lockhart    v.  Craig    St.    R'y   Co., 

139  Pa.  St.  419 114 

Lockie  v.  Mut.  Union  Teleg.  Co., 

103  111.  401 123 

Lonergan  v.  Lafayette  St.  R'y  Co., 

Indiana 18,  26,  1 1 1 

Lorie  v.  North   Chicago  City   R. 

R.  Co.,  32  Fed.  Rep.  270 104 

Lostutter  v.  City  of  Aurora,  Ind., 

12  L.  R.  A.  259 12,  14 

Louisville  and    Frankfort    R.   R. 

Co.  v.  Brown,  17  B.  Monroe  763     14 
Louisville    Bagging    Mfg.    Co.    v. 

Central    Pass.    Ry.  Co.,    Ky.,  ig,  iii 
Louisville    Gas    Co.   v.    Citizens' 

Gas  Co.,  115  U.  S.  6S3 8,  9 

Louisville,   N.   O.  T.   Ry.   Co.   v. 

Postal  Cable  Co.,  68  Miss.  806.  .    124 
Lumbard  v.  Stearns,  4  Cush.  60.  .    122 


PAGE 

MacFarland  v.  Orange  and  New- 
ark Horse  Car  R.  R  Co.,  13  N. 
J-  Eq.  17 45 

McCormick  v.  District  of  Colum- 
bia, 4  Mackay  (D.  C.)  396 76 

McDonald  v.  Newark,  10  N.  J. 
Law  Journal  84 ;  49  N.  J.  Eq. 
136 61 

McKevitt  v.  Hoboken,  45  N.  J.  L. 
402 12 

McLain  v.  Brush  Electric  Light 
Co.,  9  Cin.   Bulletin  65 89 

McLean  v.  Chicago,  I.  and  D.  R. 
R.  Co.,  67  Iowa  568 99 

McQiiaid  v.  Portland  and  Vancou- 
ver R.  R.  Co.,  18  Oreg.  237.  .  .  . 

62,  66,  73,  S3,  97,  102 

Mahady  v.  Bushwick  R.  R.  Co., 
91  N.  Y.   14S 15 

Manhattan  Electric  Light  Co.  v. 
Grant,  Mayor  of  N.  Y.,  56  Hun 
642 58 

Marietta  and  Cincinnati  R.  R.  Co. 
V.  West.  Union  Teleg.  Co.,  38 
Ohio  St.  24 136,  137 

Market  St.  R.  R.  Co.  v.  Central 
R.  R.  Co.,  51  Cal.  583 96 

Meadville  Fuel  Gas  Co's  Appeal, 
4  Atl.  Rep.  733 II 

Memphis  Bell  Teleph.  Co.  v.  Hunt, 
16  Lea    (Tenn.)  456 84 

Merchants'  Union  Barb  Wire  Co. 
V.  C.  B.  and  Q^  R.  R.  Co.,  70 
Iowa  105 34 

Mersey  Docks  Trustees  v.  Gibbs, 
L.  R.,  I   H.  L.  93,  112 157,  159 

Metropolitan  Teleph.  and  Teleg. 
Co.  v.  The  Colwell  Co.,  67  How. 
Pr.36s 78 

Michener  v.    Philadelphia,  18    Pa. 

St.  535 - 12 

Milburn   v.    Cedar   Rapids   R.  R. 

Co.,  12   Iowa   246 15 

Milhau  v.  Sharp,  27  N.  Y.  611 .  .  .  . 

10.  13,  45.  89 
Milwaukee  and  St.  Paul  R'y  Co.  v. 

Arms,  91  U.  S.  489 161 

Mills  V.  Armstrong,  The  Bernina, 

13  App.  Cas.  I 162 

Minturn  v.  Larue,  23  How.  (U.S.) 

135 9 


174 


TABLE   OF   CASES. 


PAGE 

Mortimer  v.  N.  Y.  Elev.  R.  R.  Co., 
25  N.  Y.  St.  R.  S72 62 

Morris   and    Essex    R.    R.   Co.   v. 

Newark,  10   N.   J.  Eq.  352 

71,  99,  lOI 

Mt.  Adams  and  Eden  Park  In- 
clined R'y  Co.  V.  Winslow,  20 
Week.   Bull.   420 18,  107 

Muhlenbrinck  v.  Commissioners, 
42  N.  J.    L.  364 41 

Mutual  Union  Teleg.  Co.  v.  Chi- 
cago, 16  Fed.  Rep.  309.  . .  .36,  38,  50 

Nebraska  Teleph.  Co.  v.  New  York 
Gas  and  Electric  Light  Co.,  17 
Neb.  284 142,  167 

Nelson  v.  Laporte,  33  Ind.  258.  ...     13 

Newell  V.  Minneapolis,  Lyndale 
andM.R.R.Co.,35Minn.ii2..  .    102 

New  Orleans  City  R.  R.  Co.  v. 
Crescent  City  R.R.  Co.,  12  Fed. 
Rep.   308 II 

New  Orleans  Gas  Co.  v.  Louisi- 
ana Light  Co.,  115  U.  S.  650.  ...  8,  9 

New  Orleans,  Mobile  and  Texas  R. 
R.  Co.  V.  South  and  Atl.  Teleg. 
Co.,  53  Ala.  211 134,  137 

New  Orleans  Water  Works  Co.  v. 
Rivers,  115  U.  S.   674 8,  9 

New  York  and  New  Jersey  Teleph. 
Co.  V.  Broome,  50  N.  J.  L.  432.  .    124 

New  York  and  New  Jersey  Teleph. 
Co.  V.  Dexheimer,  14  N.   J.   L. 

J-  29s 

New  York  and  New  Jersey  Teleph. 
Co.  V.  East  Orange,  42  N.  J.  Eq. 

490 ■ 31.  33 

New  York,  L.  E.  and  W.  R.  Co.  v, 

Steinbrenner,  47  N.  J.  L.  1,61 .  .  .    162 
New  York  City  and  Northern  R. 

R.  Co.  V.  Central  Union  Teleg. 

Co.,  21   Hun  261 .  .  .  ." 137 

New    York    v.    Davis,   Mayor   of 

New  York,  3  Duer   119 10 

Nichols  V.  Ann  Arbor  and  Y.  St. 

R.  R.  Co.,  87  Mich.  361 

97,  103,  118,  119 
North    Hudson     Co.    R'y   Co.   v. 

Hoboken,  41  N.  J.  L.  71 41 

North    Balto.    Pass.    R'y    Co.    v. 

North   Ave.   R'y  Co.  (Md.),   23 

Atl.  Rep.   466-470 113 


PAGE 

Norwich  Gaslight  Co.  v.  Norwich 
City  Gaslight  Co.,  25  Conn.  19 

8,  9.  13.  89 

N.  R.  R.  Co.  V.  Garside,  10  Kan. 
552 96 

O.  O.  C.  and  C.  G.  R.  R.  Co.  v. 
Larson,  40  Kan.  301 96 

Paterson  and  Passaic  H.  R.  R.  Co. 
V.  Paterson,  24  N.  J.  Eq.  158. .  .30,  96 

Peck  V.  Smith,  i   Conn.  103 62 

Pelton  V.  East  Cleveland  R.  R. 
Co.,  22  Week.  Bull.  67. .  .20,  108,  119 

Penn.  R.  R.  Go's  Appeal,  115  Pa. 
St.  514 26 

Penna.  R.  R.  Co.  v.  Lippincott, 
1 16  Pa.  St.  472 100 

Pennsylvania  Teleph.  Co.  v.  Var- 
nau,  5  Lancaster  Law  Review, 
74 160,  163 

Pensacola     Teleg.    Co.    v.    West. 

Union  Teleg.  Co.,  96  U.  S.  i 

126,  127,  130,  131 

People  V.  Bowen,  30  Barb.  24 89 

People  V.  Gilroy,  9  N.  Y.  Supp. 
686,  833 104,  118 

People  ex  rel.  N.  Y.  Electric  Lines 
Co.  V.  Squire,  107  N.  Y.  593.  .  .  .     56 

People  V.  Kerr,  27  N.  Y.  188 96,  98 

People  ex  rel.  McManus  v.  Thomp- 
son, 65  How.  Pr.  407 25,  88,  90 

People  ex  rel.  Thompson  v.  Mc- 
Manus, 65   How.   Pr.  407 25,  90 

People  V.  Mayor,  etc.,  59  How.  Pr. 
277 12 

People   V.  McManus,  32    Hun   93 

25,90 

People  V.  Metrop.  Teleph.  Co., 
31   Hun  596 46,  49 

People  V.  Mutual  Teleg.  Co.,  N. 
Y.  Daily  Reg 47 

People  V.  Newton,  112  N.  Y.  396.  . 

15,  104 
People  V.  O'Brien,  III  N.Y.I.  ..  .  15 
Peoples'    Gaslight    Co.   v.   Jersey 

City,  46  N.  J.  L.  297 34 

Peoples'  Pass.  Ry.  Co.  v.  Baldwin, 

37  Leg.  Int.  424 35 

Peoples'  Pass.  Ry.  Co.  v.  Mem- 
phis, 15  S.  W.  Rep.  973 10,  IS 

Peoples'  R.  R.  Co.  v.  Memphis  R. 
R.  Co.,  10  Wall,  38 30 


TABLE   OF   CASES. 


175 


PAGE 

Perry  v.  New  Orleans  M.  and  C. 

R'y  Co.,  55  Ala.  -413 i6 

Perkins    v.   Moorestown   and    C. 

Turnp.  Co.,  14  N.  J.  L.  J.  197.  .  .    100 
Piddicord  v.  Baltimore,  etc.,  R.  R. 

Co.,  34  Md.  463 96 

Pierce  v.  Drew,  136  Mass.  75 

74,94,122,132,136 
Philadelphia  v.  West.  Union  Teleg. 

Co.,  II  Phila.  Rep.  327 36,  38 

Philadelphia  V.  West.  Union  Teleg. 

Co.,  2  Wkly.  N.  C.  455 126 

Philadelphia   and  Trenton   R.  R. 

Co.  Case,  6  Whart.  25 7,  26 

Phillipsburgh    v.    Central     Penn. 

Tel.  Co.,  22  W.  N.  C.  572 41 

Pond  V.  Met.  Elev.  R.  R.  Co.,  112 

N.  Y.  186 63,  64,  83,  105 

Porter  v.  Met.  Elev.  R.  R.  Co.,  120 

N.  Y.  284 63,  64,  83,  105 

Porter  V.  R.  R.  Co.,  33  Mo.  128.  .74,  96 
Potter  V.   Saginaw   Union  St.   R. 

R.  Co.,  83  Mich.  285 115 

Prather    v.    West.    Union    Teleg. 

Co.,  89  Ind.  501 137 

Queen  v.  Charlesworth,  16  Q^  B. 

1012 13,  87 

Queen  v.  Train,  9  Cox.   Cr.  Cas. 

i8o 87 

Quincy  v.  C.  B.  and  Q^  R.  R.  Co., 

92  in.  21 34 

Railroad  Co.  v.  Bingham,  87  Tenn. 

522 83,  102 

Railway    Co.    v.    Cuykendahl,    42 

Kan.  234 96,  99 

Railway  Co.  v.  Lawrence,  38  Ohio 

St.  41 97 

Randall  v.  Jacksonville  St.   R.  R. 

Co.,  49  Fla.  409 96 

Randle   v.    Pacific    R.   R.  Co.,  65 

Mo.  362 45,97 

Reed  V.  Camden,  53  N.  J.  L.  322.  ..  .  11 
Regina   v.    Sheffield  Gas   Co.,   22 

Eng.  Law  and    Eq.  518 24 

Regina   v.    Sheffield   Gas   Co.,    22 

Eng.  Law  and  Eq.    200 87 

Regina  v.  United  Kingdom  Elec. 

Teleg.  Co.,  9  Cox  Cr.  Cas.  173. 

24.  45.  51 
Reichert  v.  St.  Louis  and  S.  F.  Ry. 

Co.,  SI  Ark.  491 14,  98 


PAGE 

Richmond  County  Gas   Light  Co. 

V.  Middletown,  59  N.  Y.  22S.  ...  13 
Richmond  F.  &   R.  R.   R.    Co.  v. 

Richmond,  96  U.  S.  521 30 

Rinard  v.  Burlington  and  W.  R.  R. 

Co.,  66  Iowa  440 99 

Roake  v.  Am.  Teleph.  and  Teleg. 

Co.,  41N.J.  Eq.  35 76,  79 

In  re  Rochester  Electric  Ry.  Co., 

123  N.  Y.  351 30,34,  118 

Roberts  v.  West.  Union  Teleg.  Co., 

77  Wis.  589 47,  155 

Rocky  Mountain  Bell  Teleph.  Co. 

v.  Salt  Lake   City  Railway  Co., 

Utah 144 

R.  R.  Co.  V.  St.  Louis,  66  Mo.  228. 

97.99 
Ruttles  V.   Covington,   Ky.   Ct.  of 

App.,  10  S.  W.  Rep.  644 98 

Rylands  v.  Fletcher,  L.  R.,  3  H.  L. 

330 159 

Saginaw  Gas  Light  Co.  v.  City  of 

Saginaw,  28  Fed.  Rep.  529.  ...  9 
Salisbury  v.  Great  Northern  R'y 

Co.,  5  C.  B,  (N.  S.)    174-20S 44 

Salter  v.  Jonas,  39  N.  J.  L.  469.  ...  62 
Savannah  v.  Savannah  and  Thun- 
derbolt R,  R.  Co.,  45  Ga.  602.  .  96 
Savannah  v.  Hancock,  91    Mo.  57; 

3  S.  W.  Rep.   215 30 

Savannah,  Albany  and  Qulf  R.  R. 

Co.  v.  Shiels,  33   Ga.   601 14 

Scranton    Electric    Light   Co.   v. 

Scranton,  4  Del.  (Pa.)  117.  .  .  .40,  41 
Scudder  v.  Trenton  Del.  Falls  Co., 

Saxt.  694,  729 122 

Sears  v.  Marshalltown  St.  R.  Co., 

65   Iowa   742 15,  96,  99 

Sheffield  v.  Central  Union  Teleg. 

Co.,  36  Fed.  Rep.  164 156 

Sheldon  v.  West.  Union  Teleg.  Co., 

51  Hun  591 i6i 

Sixth  Ave.  R.  R.   Co.  v.  Kerr,  45 

Barb.  1 38 15 

Smith  V.  Central  District  Printing 

and  Telegraph  Co.,  3   Ohio  Ct. 

259 So 

Smith  V.  Metrop.  Gas    Light   Co., 

12  How.  Pr.  187 89 

Smith  V.  R.  R.  Co.,  87  Tenn.  626   . 

83.   102 


176 


TABLE   OF   CASES. 


South  Carolina  R.  R.  Co.  v. 
Steiner,  44  Ga.  546 65 

South  Eastern  R'y  Co.  v.  E.  and 
A.  Electric  Printing  Teleg.  Co., 
9  Exch.  363 137 

South  Western  R.  R.  Co.  v.  South- 
ern and  Atl.  Teleg.  Co.,  46  Ga. 
43 131.  134 

Sower  V.  Philadelphia,  35  Pa.  St. 

231 33 

Springfield  v.   Conn.  River  R.   R. 

Co.,  4  Cush.  63 9S,  100 

Stack  V.  East  St.  Louis,  85  111.  377  105 
Stange  V.  Dubuque,  62  Iowa  303.  99 
Stange  v.  Hill  and  West  Dubuque 

Street  R.  R.  Co.,  54  Iowa  669.  .     96 
Stanley  v.  Davenport,  54  Iowa  463 

i5>  96,  99.  102 
Starr  v.  Camden  and   Atlantic  R. 

R.  Co.  4  Zab.,  24  N.  J.  L.  592.  .     71 
Starr  v.  Camden  and  Atlantic   R. 

R.   Co.,  24  N.  J.  L.  592 98 

State  V.  Cincinnati  Gas  Light  and 

Coke  Co.,  18  Ohio  St.  262.  .9,  10,  12 
State    V.    Domestic     Teleg.    and 

Teleph  Co.  v.  Newark,  49  N.  J. 

L-   344 23 

State  V.  Flad,  23  Mo.  App.  185.  .  .     32 
State  V.  Jersey  City,  3  Dutch.  (27 
N.J.  L.)  493 33 

State  V.  Laverack,  36  N.  J.  L.  201 .     61 

State  V.  Milwaukee  Gas  Light  Co., 
29  Wis.  454 8,  9 

State  V.  Paterson,  45  N.  J.  L.  267.     33 

State  V.  Postal  Teleg.  Co.,  47  Fed. 
Rep.  633 122 

State,  Benson,  pros.  V.  Hoboken,  33 
N.  J.   L.  280 41 

State,  Broome,  pros.  v.  New  York 
and  New  Jersey  Teleph.  Co.,  49 
N.  J.  L.  624 31,34 

State,  Duke,  pros.  v.  Central  N.  J. 
Teleph.  Co.,  53  N.  J.  L.  341 .  .  122,  137 

State,  Gleason  v.  Bergen,  33  N.  J. 
L.72 33 

State,  Green,  pros.  v.  Trenton, 
15  N.  J.  Law  Journal  39;  23  Atl. 
Rep.  281 22,  34,  47,  106,  1 14 

State,  Halsey,  pros.  v.  Newark,  32 
Atl.  Rep.  284 ;  1 5  N.  J.  Law  Jour- 
nal 45 22,  34,  47,  106,  114 


State,    Hoboken    Land  Imp.   Co., 

pros.  V.  Hoboken,  35  N.J.  L.  208.        7 
State,  Huntv,  Lambertville,  45  N. 

J.  L-  279 33 

State,  Montgomery  v.  Trenton,  36 

N.  J.  L.  79 14.  IS 

State,  Paterson  v.  Barnett,  45  N. 

J.  L.  62 33 

State,  Story  v.   Bayonne,  35  N.  J. 

L-   335 33 

State,  Trenton  and  N.  B.  Turnpike 

Co.,  pros.  V.  Am.  and  European 

Commercial  News  Co.,  43  N.  J. 

L.  381 122,  123,124 

State,  Van  Vorst  v.  Jersey  City,  3 

Dutch.  (27  N.  J.  L.)  493 33 

Stein    V.  Bienville    Water  Supply 

Co.,  34  Fed.  Rep.  145 9 

Sterling's  Appeal,  iii  Pa.  St.  35,  . 

13,  14,  88,  89 
Stevens  v.  Middlesex  Canal  Co.,  12 

Mass.   466 157 

Story  V.  N.  Y.  Elev.  R.  R.  Co.,  90 

N.  Y.  122,  179,  189 

63,  64,  65,  83,  88,  98,  105 
Stowers  V.  Postal  Teleg.  Cable  Co., 

Sup.    Ct.    Miss.,  44    Alb.,  L.   J. 

133 ^^ 

Street   Railway  v.  Cumminsville, 

14  Ohio  St.  524 96.97 

St.  Louis  V.  Bell  Teleph.  Co.,  96 

Mo.  623 23,  74 

St.  Louis  V.  Bell  Teleph.  Co.,  98 

Mo.  622 42 

St.  Louis  V.  West.  Union  Teleg. 

Co.,  39  Fed.  Rep.  59 4^ 

St.  Louis  A.  and  T.  H.  R.  R.  Co. 

V.  Belleville,  20  111.  App.  580.  .  .      10 
St.  Louis  R'y  Co.  v.  Southern  R'y 

Co.   (Mo.),    16  S.  W.    Rep.  690 

962 30 

St.  Paul,  etc.  R.  R.  Co.  v.  Schur- 

meir,  7  Wall.  272 65 

Suburban  Light  and  Power  Co.  v. 

Boston,  153  Mass,  447 31,  32,  40 

Taggart  v.  Newport  St.  Ry.  Co., 

16  R.  I.  668 

17,79,82,93,97,  109,  115.  118 

Tate  v.  R.  R.  Co.,  64  Mo.  150 96 

Teachout  v.  Des  Moines  B.  G.  R. 

R.  Co.,  75  Iowa  722 105 


TABLE   OF   CASES. 


177 


PAGE 

Teleg.  Co.  v.  City,  22  W.  N.  Cas. 

(Pa.)  39 41 

Teleg.  Co.  v.  Teleg.  Co.,  10  Cine. 

Week.  Bull.  201 128 

Teleg.  Co.  v.   Wilt,   11  American 

Law  Journal  374 48 

Theobald  v.  Louisville,  etc.,  R.  R. 

Co..  66  Miss.  279 65,  81,  97 

Thomas   v.    West.   Union    Teleg. 

Co.,  100  Mass.  156 160,  162 

Thompkinsv.  Hodgson,  2  Hun  146.  88 
Thompson  v.  Sunderland  Gas  Co. 

L.  R.,  2  Ex.  Div.  429 87 

Tiffany  v.  U.  S.  Illuminating  Co., 

67  How.  Pr.  73 ;  50  N.  Y.  Super. 

Ct.  280 25,  90,  91 

Tissot  V.  Great  South  Teleg.,  etc., 

Co.,  39  La.  Ann.  996 84,  85 

Tracy  v.  Troy  and  Lansingburgh 

R.  R.  Co.,  54  Hun  550 118 

Traphagen  v.  Jersey  City,  29  N.  J. 

L.  206,  246 12 

Trenton  Horse  R.  R.  Co.  v.  Tren- 
ton, 53  N.  J.  L.  132 42 

Turnpike  Co.  v.  A.  and  E.  Com- 
mercial  News   Co.,  43  N.  J.  L. 

381 122,  123,  124 

United   Electric   Ry.  Co.  v.  Shel- 

ton,  14  S.  W.  Rep.  863 167 

U.  S.  Illuminating  Co.  v.  Grant,  7 

N.  Y.  Supp.  788 56 

U.  S.   Illuminating  Co.  v.  Grant, 

55   Hun  222 166 

U.  S.  Illuminating  Co.  v.   Hess,  3 

N.  Y.  Supp.  777;   19  N.  Y.  St. 

Rep.  883 56 

Van  Home  v.  Newark  Pass.  R.  R. 

Co.,  21   Atl.  Rep.  1034 7I7  9S 

Vose  V.  Newport  St.  R.  R.  Co.,  46 

Am.  and  Eng.  R.  R.  Cas 91,  97 

Wandsworth     District    Board    of 

Works  V.  United  Teleph.  Co.,  13 

CL  B.  D.  904 44,77 

Wandsworth  District  Local  Board 

V.  Postmaster-General  Nev.  and 

Macn.  301  (Commissioner's  De- 
cisions)        52 

Watervllet    Turnpike    and   R.    R. 

Co.   V.    Hudson    River    Teleph. 

Co.,  9  N.   Y.   Supp.  177;  121  N. 

Y.  397 M7 


PAGE 

Ward  V.  Atlantic  and   Pac.  Teleg. 

Co.,  71   N.  Y.  81  ;   s.  c.  27  Am. 

Rep.  10 159,  166 

Wartman  v.  Phila.,  33  Pa.  St.  202- 

210 61 

West   Jersey   R.    R.   Co.  v.   Cape 

May  and  S.   R.  R.  Co.,  34  N.  J. 

Eq.  164 96 

West  V.  Bancroft,  32  Vt.  367.  .  .  12,  88 
West.   Union   Teleg.   Co.  v.   Am. 

Union    Teleg.    Co.,  65    Ga.   160 

127,  134 
West.   Union  Teleg.   Co.   v.   Am. 

Union  Teleg.  Co.,  9  Biss.  72.  .  .  . 

127,  128,  129,  130,  137 
West.  Union  Teleg.  Co.  v.  Atl.  and 

Pac.  Teleg.  Co.,  7  Biss.  367.  .  129,  136 
West.  Union  Teleg.  Co.  v.  B.  and 

O.  Teleg.  Co.,  22  Fed.  Rep.  133.  135 
West.  Union  Teleg.  Co.  v.  B.  and 

O.  R.  R.  Co.,  20  Fed.   Rep.  572.  137 
West.  Union  Teleg.  Co.  v.  B.  and 

O.  Teleg.  Co.,  23  Fed.  Rep.  12.  .   135 
West.  Union  Teleg.  Co.  v.  B.  and 

O.  Teleg.  Co.,  19  Fed.  Rep.  660 

127,  131 
West.  Union  Teleg.  v.  Burlington 
and  S.   R'y   Co.,  11   Fed.  Rep.  i 

127,  128 
West.   Union   Teleg.  Co.  v.  Cent. 
Union   Teleg.   Co.,  3   Fed.  Rep. 

417 13s 

West.  Union  Teleg.  Co.  v.  Cham- 
pion Elect.  Light  Co.,  14  Cin. 
Week.  Bull.  327 142 

West.  Union  Teleg.  Co.  v.  Chi- 
cago, etc.,  R.  R.  Co.,  86  111.  246.  .    135 

West.  Union  Teleg.  Co.  v.  Eyser,  2 
Colo.  Ter.    141 161 

West.  Union  Teleg.  Co.  v.  Eyser, 
91  U.  S.  495 161 

West.  Union  Teleg.  Co.  v.  Levi, 
47  Ind.  552 163 

West.  Union  Teleg.  Co.  v.  Massa- 
chusetts, 125  U.  S.  530 131,  133 

West.  Union  Teleg.  Co.  v.  New- 
York.  38  Fed.  Rep.  552 56,  133 

West.  Union  Teleg  Co.  v.  Phila- 
delphia, Pa.,  12  Atl.  Rep.  144.  ..  .     40 

West.  Union  Teleg.  Co.  v.  Rich, 
19  Kan.  517 131,  132,  137 


1/8 


TABLE   OF   CASES. 


PAGE 

West.  Union  Teleg.  Co.  v.  St.  Jo- 
seph and  W.  R.  R.  Co.,  i  Mc- 
Crary  569 135 

West.  Union  Teleg.  Co.  v.  Union 
Pac.  R.  R.  Co.,  I  McCrarj  418, 
582 138 

West.  Union  Teleg.  Co.  v.  Western 
andAtlan.R.R.  Co.,91  U.  S.  2S3.    138 

West.  Union  Teleg.  Co.  v.  Wil- 
liams, 2  Am.  R.  R.  and  Corp. 
Rep.  258;  86  Va.  896 72,  80,  82 

Wetmore  v.  Story,  22  Barb.  414.  .     45 

Weyl  V.  R.  R.  Co.,  69  Cal.  203 98 

Wichita  and  C.  R.  Co.  v.  Smith,  45 
Kan.  264 96,  97,  99 

Wiggins  V.  East  St.  Louis  Ferry 
Co.,  107  111.  450 97 

Williams  v.  City  Electric  R.  R. 
Co.,  41   Fed.  Rep.  556 102,118 

Williams  v.  Citizens'  Ry.  Co. 
(Ind.),  29  N.  E.  Rep.  408 113 

Williams  v.  Louisiana  Light  and 
Power  Co.,  8  So.  Rep.  936 163 

Willis  V.  Erie  Teleg.  and  Teleph. 
Co.,  37  Minn.  347 79 


PAGE 

Wilson  V.  Gt.  So.  Teleph.  and 
Teleg.  Co.,  41  La.  Ann.   104.  . .  .   161 

Wilson  V.  Des  Moines,  O.  and  S. 
R.  Co.,  67  Iowa  569 99 

Winter  v.  Peterson,  4  Zab.,  24  N. 

J-  L-  524 62 

Winter  v.  N.  Y.  and  N.  J.  Teleph. 

Co.,  51  N.  J.  L.  83 31,  79,  124 

Wisconsin    Teleph.     Co.    v.     Eau 

Claire  St.  Ry.  Co.,  and  Sprague 

Electric    Ry.    and    Motor     Co., 

(Wis.) 145 

Wisconsin  Teleph.  Co.  v.  Oshkosh, 

65  Wis.  32 122 

White  V.  Godfrey,   97  Mass.  472.  .      12 
Wolfe  V.  Erie  Teleg.  and  Teleph. 

Co.,  33  Fed.  Rep.  320 47,  155 

Wright  V.  Nagle,  loi  U.  S.  791.  .  .        9 
Yates  V.  Town  of  West   Grafton, 

24  W.  Va.   783 99 

Young  V.  Rondout  and  Kinerston 

Gas  Co.,  Dec.  i,  1891,  41    N.   Y. 

St.  Rep.    109 149 

Young  V.  Yarmouth,  9  Gra/    j86. 

24,  46 


INDEX. 


[Figures  refer  to  pages,  not  sections.] 


Abutter.     See     Abutting    Land- 
owners. 
Abutting  Landowners. 

Electric  Light  Wires — Chapter  on, 
89. 
Consent  to,  89. 
Electric  railway — Chapter  on,  92. 
Certiorari,  113. 

Rights  with  respect  to,  20,  21,  22, 
92,  104,  III,  112,  115,  116. 
General  view  of    rights    of,    in   the 

streets — Chapter  on,  59. 
Gas  pipes  in  the  streets,  87. 
Horse  railroads,  95,  98. 
Rights  of,    in  the  streets — General 

view,  59. 
Rights   of,    in  the  streets,  4,  18,  59, 

61,  62,90,  «,  92,  119,  120. 
(See  other  subtitles.) 
Steam  railroads,  70,  98,  loi. 
Telegraph  and  telephone — Chapter 
on,  69. 
Rights  with  respect  to,  69,  82,  no, 
132. 
Telegraph  on  a  railroad,  136. 
Underground  wires,  83,  86. 
Urban  and  suburban  streets,  87. 
See  Electric  Railway;  Electric 
Light;  Telegraph  and  Tele- 
phone;   Adjacency;    Fee; 
Streets;  Title. 
Access,    Light  and  Air.     See  Ad- 
jacency, Abutting  Landown- 
ers. 
Adjacency. 

Damages  for  interference  with  right 
of,  83,  85,  91. 
Right  of,  defined    and    discussed 
4,    62,    63,    64,    65,    66,   67,    84, 
85- 


Adjacency — Continued. 

Right  of,  with  respect  to  the  Elec- 
tric Railway,  66,  92,  107,  116. 
Right  of,  with  respect  to  electric 

light  wires,  66,  91. 
Rights  of,    with  respect  to  lands 
condemned     for     railroad     and 
canal,  136. 
See  also  Abutting  Landowners. 
Authority. 

By  which   the  streets  may  be   used 

for  electric  wires,  7. 
To  set  up  poles  and  wires — subject 
to  condition  that  they  shall  not  in- 
terfere with  public  travel,  154. 
See     Municipal     Corporations; 
Municipal  Control;  Legisla- 
ture; Common  Council. 
Awnings. 

Municipalities  may  authorize  or  for- 
bid, 12. 
Use  of  streets  for,  115. 
Bell,   Graham. 

Specifications  of  claim  in  telephone 
cases,  122,  n. 
Board  of  Works. 
Title  of,  to  the  street,   power  over 
telegraph  wires,  44. 
Cable  Railway. 

Use  of  streets  for — Rights   of  abut- 
ting owner,  103. 
California.     See  Statutes, 
Certiorari. 

To  review  ordinance  consenting  to 
poles  and  wires,  113. 
Change  of  Motive   Power,  17,  iS, 

19,  20. 
Circuit. 

Electric,  through  the  earth  or  return 
wires,  139-141. 

(179) 


i8o 


INDEX. 


Cisterns. 

In  the  streets,  12. 

Cities.    See  Municipal  Corpora- 
tions. 

Commerce. 

Regulation  of,  127. 
Common  Council. 

Ordinance  or  resolution,  consent  of 
by,  17-23. 

Consent  to  poles  and  wires  for  elec- 
tric railway,  16-23. 

See  Municipal  Corporations. 
Compensation. 

Must  be  made  for  use  of  post  road, 

When  it  must  be  made,  4. 

See  Abutting  Landowners. 
Condemnation. 

Designation    of    streets  as  a   condi- 
tion precedent,  124. 

Failure  to  condemn   as  a  condition 
precedent,  123. 

Petition   for    with    respect   to  tele- 
graph line,  79,  71. 

Post   roads  for  telegraph  purposes, 
129-132. 

Private  rights   for   lines  of  electric 
wire — Chapter  on,  120. 

Private    rights    only  need  be    con- 
demned, 122. 

Right  of  way  for  a  railroad,  136. 

Right  of  way  for  a  turnpike,  123. 

Right  of  way  for  a  telegraph,  137. 

Right  acquired  only  such  as  is  neces- 
sary, 123. 

See  also  Abutting  Landowners. 
Condition  Precedent. 

Grants  subject  to,  29,  31. 

To  right  to  use  poles  —  What  may 
not  be  insisted  on,  3. 

See  Condemnation. 
Conditional   Grant  of    Legisla- 
tive  Authority,  29. 
Conditions. 

What  may   not    be    imposed    as  the 
price  of  municipal  consent,  32. 

What    may  be    imposed   for  use    of 
streets  for  electric  wires,  32. 

See  Condition  Precedent. 
Conductors  on  Horse  Cars. 

Ordinance  requiring,  42,  n. 


Conflicting     Uses    of     Electric 
Wires. 
Chapter  on,  139. 

Interference  of  electric  currents,  5. 
Congress. 

Act  of,  relating  to  telegraphs  on  post 
roads,  125,  130. 
Connecticut. 

Statutes    relating    to    underground 

wires,  54. 
Statutes   relating  to   condemnation, 

120. 
Statutes  relating  to  use  of  streets  for 
electric  wires,  29. 
Consent. 

Municipal,  conditions  of,  3,  28. 
By  ordinance  or  resolution,  17-23. 
Of  local  authorities,  28. 
Consent  of  Landowners. 

As  a  prerequisite  to  proceedings  to 

condemn,  iiS. 
To   telegraph  and   telephone   lines, 
71-78. 
Contributory    Negligence.      See 

Negligence. 
Controversies. 

With  owners  of  lands,  59. 
CooLEY,  Judge. 

Views  of,   as  to  horse  railroads  as  a 
new  burden,  98. 
Council.     See    Municipal   Corpo- 
rations; Common  Council. 
Currents.     See   Dangerous    Cur- 
rents. 
Danger. 

Effect  of  sudden  emergency  on  con- 
tributory negligence,  163. 
Electric  railway   held  not  to  create, 

III. 
From  electric  railways,  109,  116. 
Single    trolley    system   held   to   be 

safe.  III. 
See  Dangerous. 
Dangerous  Article. 

Owner  using  on  his  premises  must 
keep  safely,  148. 
Dangerous  Currents. 

Liability  for  injuries  from,  166. 
Dangerous  Obstruction. 

Defective  poles  and  wires,  154,  155, 
158. 


INDEX. 


I8l 


Dangerous  Obstruction — ConVd. 

Opinion  of  jury  as  to,  155. 
Dangerous  Wires. 

Obligation   to  keep  them  in  place, 

Defective  Materials. 

Liability  for  injuries  from,  148. 

Liability  for  injuries  from — Chapter 
on,  154. 
Defective  Poles. 

Injuries  from — Chapter  on,  154. 
Designation  of  Streets. 

As  a  condition  of  condemnation,  124. 

Electric  wires,  31,  32, 
Dillon,  Judge. 

Question  suggested  by,  with  respect 
to  use  of  streets  by  electric  rail- 
way, 93. 

Views  of,  as  rights  of  abutting  land- 
owners, 61,  82,  87. 
Drains.     See  Sewers. 
Dummy  Steam  Engines. 

Abutting  landowner,  loi,  103.  118. 

Use  of  streets  by,  loi,  103,  iiS. 
Easements  in  Streets. 

Distinction  between  urban  and  rural, 

87. 
See    Abutting    Landowners; 

Streets;  Adjacency. 
Economic  Legislation. 

Book  on  by  Allen  R.  Foote,  29,  «., 

27,  n. 
Edison,  Thomas  A. 

Testimony  of  as  to  electric  railway, 

112. 
Electric  Currents. 

Interference  of  with  one  another — 

Chapter  on,  139. 
See  Dangerous  Currents. 
Electric  Light  Currents. 

Interference     with    telephone    cur- 
rents, 139-143- 
Electric  Light  Wires. 

Rights  of  abutting  owners,  86. 
Abutting     landowners,      distinction 

with  respect  to  public  and  private 

lights,  88. 
Designation  of  streets,  31,  «. 
Distinction  between  wires  used  for 

public    purposes    and   those  used 

for  private  purposes,  91. 


Electric  Light  "Wik^?,  — Continued. 

English  statute,  51. 

Municipal    control,    24,    31,    w.,    32, 
89. 

Police  regulations  respecting,  39. 

Poles    and    wires — a   proper  use  of 
the  streets,  when,  88. 

Relation  to  the  highway,  86, 

Specially  subject  to  municipal  con- 
trol, 32. 

See  Elect^iic  Wires. 
Electric  Motor. 

Use  of,  implied  in  grant  of  author- 
ity to  use  animal  or  other  power, 

17- 
See  Electric  Railway. 
Electric-Power  Wires.    See  Elec- 
tric Light  Wires. 
Electric  Railway. 

Abutting  landowners,  rights  of,  how 

affected.     Is  it  a  new  burden  ?   15, 

17,  19,21,  23,  92,  93,  94,  95,  104,  loS, 

115,  117,  158. 
See  Abutting  Landowners. 
Compared  with,    and    distinguished 
from  other  railways. 

In  general,  95. 

Elevated  railroads,  105,  117. 

Horse  railroads,  15,  23. 

Steam  railroads,  117. 
Compared    with   and    distinguished 

from  the  telegraph  and  telephone, 

93,  94.  loS. 
Implied     authority    to    operate     in 

streets,  109. 
Interference  of   current   with   tele- 
phone current,  139-153- 
Location  of  poles  in  the  streets,  47. 
Municipal  control — what  conditions 

may  not  be  imposed,  32. 
Municipal  control— Chapters  on,  28, 

Municipal  regulation,  30,  n. 

Municipality,  power  of  to  authorize, 
1.6,  17,  18,  19.  20,  30.  w.,  32,  109. 

Municipal  permission  to  use  streets 
for,  109. 

No  distinction  between  poles  of  rail- 
way and  telegraph,  108. 

Not  a  new  burden  on  the  street,  17, 
21,  115. 


I82 


INDEX. 


Electric  Railway — Continued. 

Not  a  diversion  of  the  street  from 
its  proper  uses,  19,  20,  95. 

Perversion  of  the  proper  uses  of  a 
street,  19,  95. 

Poles  and  wires  of,  104. 

Poles  in  middle  of  street,  158. 

Questions  suggested  by  Judge  Dillon 
on  decision  of  case  in  Rhode 
Island,  93. 

Substitute  for  steam  railway — Mode 
of  use  the  criterion,  119. 

Use  of  streets  for,  7,  20,  63,  n,  106, 
109,  119.  See  Electric  Rail- 
way, subtitle — Abutting  Land- 
owners. 

See  also  Abutting  Landowners; 
Municipal   Control;  Munici- 
pal     Corporations;      Police 
Regulations;  Electric  Wires. 
Electric  Wires, 

Designation  of  streets  for,  31. 

General  principles  governing  the  use 
of  streets  for,  5,  7. 

Multiplication  of,  in  the  streets,  59. 

Municipal  authority  to  use  the  streets 
for,  25. 

Relation  to  streets  and  highways,  2. 

See    Electric    Railway;    Tele- 
graph;     Poles     and     Wires; 
Wires. 
Electricity. 

Application  of  to  new  uses — Tele- 
phones, long-distance,  153. 

Distribution  of  power  through  wires 
from  central  sources,  2. 

Explanation  of  phenomena  relating 
to  interference  of  current,  139-140. 

Induction  and  leakage,  140. 

New  applications  of,  i. 

Use  of   for  propelling  street  cars — 

Does   not  change    the   use  of    the 
street,  106. 
Elevated  Railroad  Cases. 

Comparison  of  electric  railway  cases 
with,  105. 

Right  of  adjacency,  63. 

References  to,  63,  ». 
Elevated  Railroads. 

As  post  roads,  control  of  telegraph 
wires  on,  132. 


Eminent  Domain. 

Over  streets  and  highways  for  elec- 
tric wires,  7. 
Engine.     See   Dummy    Steam    En- 
gine. 
English  Statutes. 

Relating  to  underground  wires,  51. 
Exclusive  Franchises. 

With    respect  to  horse   and  steam 
railroads,  9,  10,  ii,  12,  14. 

See  Franchise. 
Exclusive  Privilege. 

To   erect  telegraph    lines   on   post 
roads,  127. 

Municipal  corporations  cannot  grant, 

25- 
Telegraphs  on  post  roads,  127,  128, 

129. 
See  Exclusive  Use;  Monopolies. 
Exclusive  Use. 

Contract   for,  by  landowner,  135,  «., 

136, «. 
Question   of   right   of    one   electric 

current   to  exclude  another,  139- 

153- 
Of  railroad  by  telegraph  company, 

134-135- 
Fee. 

In  land  in  street,  115. 

In  land  in  the  streets  —  Distinction 

with  respect  to,  61,  63,   n.,  64,  65, 

66. 
Trespass  upon  the,  68. 
See  Abutting   Landowners. 
Fire  Alarm  Telegraphs,  83,  84. 
Franchise. 
Exclusive,  to  use  streets,  9,  10,  11, 

12. 
For  the  use  of  streets — Laws  of  the 

several    States    respecting,   27,  «., 

29,  ». 
General  provision  for,  14. 
How  far  it   justifies   obstruction  by 

poles  and  wires,  45. 
Revocation  of,  34,  35,  36. 
Gas  Pipes. 

Use  of  the  streets  for,  13,  ».,  61, 63,  »., 

"5- 
May  they  be  laid  in  streets  without 

compensation,  87. 
Natural  gas  for  fuel  purposes,  88,  n. 


INDEX. 


18' 


Grants. 

Subject  to  municipal  regulation,  30, 

31- 

See    Municipal     Corporations; 

Legislature;  Municipal  Con- 
trol; Exclusive    Privileges; 
Franchises. 
Guy  Wires. 

Obstruction   of   street  —  Injuries  to 
travelers,  i6i. 
Hedge. 

Cutting  for  a  telegraph  line,  80. 
Highways.     See  Streets. 
Horse  Cars. 

Ordinance      requiring      conductors, 
42,  «. 
Horse  Railroads. 

A  proper  use  of  the  street,  15,  18,  95, 

98. 
Characteristics    of    mode  of  use  of 

streets  described,  23. 
Distinguished  from  steam    railroads 
with  respect  to  use  of  streets,  98, 

lOI. 

Extent   of   ordinary  powers  of  mu- 
nicipalities with  respect  to,  14. 
How  far  right  of  way  exclusive,  15. 
Legislative    authority    to     use    the 

streets  for,  15. 
Municipal  regulation,  30,  n. 
Induction,  140. 
Illinois. 

Consent  of  town  required  for  use  of 

streets  for  electric  wires,  29,  «. 
Statutes   relating  to   condemnation, 
12. 
Importance. 

Of  the  subject   of  electric  wires  in 
streets,  i. 
Ingress  and  Egress. 

Right  of  adjoining  owner,  76. 
See  Adjacency  ;  Abutting  Land- 
owners. 
Injunction. 
Against  cutting  down   electric  rail- 
way poles,  no. 
Against  erecting  telephone  poles,  75. 
Against    interfering    with     electric 

railways  dissolved,  108. 
Against  cutting  down  electric  light 
wires,  90. 


Injunctiox — Continued. 

Against  electric  railway  granted  to  a 

certain  extent,  116. 
Against  interference  of  electric  light 

with  telephone  currents,  142. 
Against  interference  by  electric  rail- 
way current   with   telephone  cur- 
rent, 143-153- 
Bill  for  by  property-owners,  20. 
Mandatory  to  take  down  poles,  78. 
Preliminary  refused — As  to  stretch- 
ing wires  over  street,  76. 
To  remove  water  pipes,  88,  w. 
Vacated  where  effect  would   be   to 
retard  work  of  public  utility,  118. 
Injuries. 

Liability  for  by  reason  of  location  of 

poles,  154. 
Liability  for  by  reason  of  wires  hang- 
ing too  low,  159. 
From   unauthorized    wires   and  de- 
fective poles.     Chapter    XV,    154. 
Interference. 

Of    different  kinds    of  electric  cur- 
rents, 5. 
Chapter  on,  139. 

With  use  of  street  is  question  of  fact, 
106. 
Jury. 

Province  of,  with  respect  to  danger- 
ous location  of  poles,  155,  157. 
See  Electric  Railway. 
Lamp  Posts. 

Use  of  streets  for,  13,  115. 
Landowner.     See  Abutting  Land- 
owners. 
Laws. 

Of    the    several    States    respecting 

street  franchises,  29,  «.,  27,  n. 
See  Statutes. 
Leakage. 

Of  electric  currents,  140. 
Legislature. 

Exclusive    and    indefinite    franchise 

may  be  granted  by,  9. 
Control    of    streets    and    highways 
belongs  to,  3,  7,  8,  25,  28,  114,  157- 
Intention     express    or    implied     in 

granting  franchise,  22. 
May  delegate  power  to  municipali- 
ties, 8. 


1 84 


INDEX. 


Legislature — Continued. 

May  modify  public  rights  in  street, 

157- 
May  delegate  authority  and  impose 

conditions,  28. 
Power   to  place  wires   in   subways, 

54'  57- 
Power  to  appropriate  parts  of  streets 

to  special  uses,  26,  75. 
Lewis,  John. 

Views  of,  as  to   rights  of  abutting 

landowners,  61,  81,  87,  96. 
Views  of  on  the  telegraph  as  an  ad- 
ditional burden,  81. 
Views  of  with  regard  to  horse  rail- 
roads as  a  new  burden,  96. 
License. 
By  railroad  company  to  maintain  a 

telegraph  line,  138. 
Plea  of,  on  indictment  for  dangerous 
obstruction,  47. 
License  Fees. 

On  poles  and  wires,  40. 
Power  to  impose  as  a  condition   of 
municipal  consent,  3. 
Light  and  Air. 

Damages  for  obstructing,  83,  85. 
See  Abutting  Landowners  ;  Ad- 
jacency. 
Lighting  Streets. 

Municipal     authority  —  Consent   of 

landowner,  89,  90. 
Powers    of    cities    with   respect   to, 
12,  13. 
Litigation. 

Nature   and  causes  of  with  respect 
to  wires  in  the  streets,  i. 
Local  Authorities. 
Consent  of,  28. 
Title  of,  to  streets,  77,  n. 
What  are,  34. 
Location  of  Poles. 

Liability   for  injuries  by  reason  of, 

154.  156. 
See  Poles. 
Market. 

Use  of  streets  for,  61,  «. 
Materials. 

Defects   in,   liability   for    accidents, 
154-164. 
McCluer  Device,  141,  145,  150. 


Middle  of  the  Street. 

Poles  and  wires  in,  106,  113,  158. 
Monopolies. 

Telegraphs  on  post  roads — Effect  of 
act  of  Congress,  126. 

See  Exclusive  Franchises. 
Motive  Power. 

Change  of,  does  not  change  charac- 
ter of  the  use  of  street  nor  impose 
new  burden,  18,  19,  113. 

Electricity  included  in  general  lan- 
guage providing  for,  118. 

Implication  from  general  grant  of 
right  to  use  any.  iii. 

Implication  from   general  grant  of 
permission  to  operate  street  rail- 
way, 21. 
Municipal  Cons  nt. 

Designation  of  streets  for  electric 
light  lines,  32. 

How  given,  33. 

Power  to  withdraw,  34,  35,  36. 

To  placing  poles  and  wires  in  streets, 
28,  29. 

To  electric  railway,  112. 

See  Municipal  Control;  Munic- 
ipal Corporations. 
Municipal  Control. 

Chapters  on,  28,  38. 

Over  streets,  nature  and   extent  of, 

56,  57- 

Over  underground  wires,  50,  57. 

Power  to  impose  conditions,  32. 

Telegraphs  on  post  roads  are  sub- 
ject to,  132. 

Telegraph  and  telephone  wires,  38- 

56. 
See    Municipal    Corporations; 

Municipal  Consent. 
Municipal  Corporations. 
Authority  of,  over  streets,  3. 
See    Municipal     Corporations, 

subtitle — Power. 
Cannot     revoke     franchise,   34,   35, 

36. 
Cannot  divert  the  streets  from  their 

proper  uses,  17. 
Cannot  grant  exclusive    franchises, 

9,  10,  25. 
Cannot   give   consent  to  poles   and 

wires  for  electric  railway,  114. 


INDEX. 


185 


Municipal   Corporations — ConVd. 
Control  over  streets,  28,  38. 
Derive     their    power    over    streets 

from  the  legislature,  25. 
Extent  of  ordinary  powers  of,  9,  10, 

II,  12,  13. 
Effect  of  permission  on  liability  for 

injuries   by   reason   of   poles   and 

wires  in  the  streets,  156. 
Electric  light  wires,  18,  19,  24,  31,  32, 

39,  86-91. 
Electric   railway,  16,   17,  18,   19,  20, 

21,  22,  118,  119. 
Implied     powers     with    respect    to 

electric  wires,  25. 
Implied    powers    with    respect    to 

electric  wires   dependent   on   the 

purpose  of  the  use,  13. 
License  fees,  3,  40. 
Powers  of,  extent  of  ordinary,  9,  10, 

II,  12,13,  38- 
Power  of   only  what  is  delegated,  8, 

10. 
Power  to  regulate  but  not  to  lay  an 

embargo,  31. 
Power  with  respect  to  electric  light 

wires,  18,   19,  24,  31,  32,  39,  86-91. 
Power   of,  with    respect  to   electric 

railway,   14-22,  118,  119. 
Power  with  respect  to  telegraph  and 

telephone  lines  in  street,  23. 
Power  to  fix  tolls  and  rates,  42. 
Power  of,  with  respect  to  streets,  3, 

8,9,  ID,  II,  12,  17,  25,43,44. 
,    See    also     Municipal     Corpora- 
tions Generally. 
Power  to  remove  wires,  34,  35,  50-56, 

90. 
Power   to   order   wires   put   under- 
ground, 50-56. 
Power  to  impose  conditions,  116. 
Power  to  regulate  speed,  119. 
Rights  in  the  street  held  for  public 

purposes,  43,  44. 
Title   to  land   in   the    street.     See 

Title;     Abutting     Landown- 
ers; Fee. 
Telegraph  and  Telephone,  38-56. 
Municipal  Franchises. 

Companies     operating    under  —  by 

Allen  R.  Foote,  29,  «.,  27,  n. 


Municipal  Regulation. 

Grants  subject  to,  30,  31. 

Chapters  on,  28,  38. 

See    Municipal     Corporations; 
Municipal    Control;    Munic- 
ipal Consent. 
Negligence. 

Contributory  in  use   of  streets,    156, 
160,  162,  163,  165. 

Contributory  in  case  of   emergency, 
163. 

Evidence  with  respect  to  fallen  poles, 
163. 

Proof  required  with  respect  to  wires 
hanging  too  low,  160. 
Nuisances. 

Poles  and  wires  as,  44,  45-49,  59,  69, 
154-164. 

Dangerous  currents  as,  166. 

Steam  motors,  102. 

See  Electric     Light;    Electric 
Railway;      Telegraph     and 
Telephone  ;  Obstruction; 
Poles. 
Obstruction  of  Highway. 

Distinction  between  fixed  and  mov- 
ing, 108. 

Unauthorized  poles  and   wires  con- 
sidered as,  45,  154. 

Telegraph  pole  as,  73-82,  155. 

Telegraph  and  telephone  wires  hang- 
ing too  low,  160. 

See  Poles. 

Only  authorized  by  an  express  grant, 

47- 

See      Light     and    Air;     Poles; 
Wires;     Streets;    Municipal 
Corporations;  Nuisances. 
Ordinance. 

Consent     to     electric     railway     by, 
21. 

Implied  authority  to  use    poles   and 
wires,  22. 

Permitting  poles  and  wires  for  elec- 
tric railway,  20,  21. 

When  required   for   giving   consent 
to  use  streets,  33. 

Regulating  height  of   wires — Effect 
of,  48. 
Overhead  System.     See  Electric 
Railway. 


1 86 


INDEX. 


Perversion. 

Of  the  uses  of  a  street,  61-65. 
Petition  To  Condemn. 

Requisites  of,  123,  124. 
Pipes. 

Electric  wires.     See  Underground 

Wires. 
Gas — Power  of  cities,  12,  13. 
Water — Powers  of  cities  with  respect 

to,  12,  13. 
Use  of  the  streets  for,  61,  63,  n. 
Poles. 

Along  the   sidewalk — How  far  jus- 
tified by  permission,  49. 
For    electric    railway  affect  not  the 
land  but  rights  of  adjacency,  105, 
117. 
Are  they  a  new  burden  on  the  land? 

18,  88,  90,  104-118. 
Mandatory  order  to  remove,  108. 
Margin  of  the  street,  no. 
Middle   of    the    street,    106,    113, 
158. 
Location    of  —  When    justified    by 

grant  of  franchise,  47. 
Location  of,  47,  49. 
Negligence  in  allowing  to  fall — Evi- 
dence with  respect  to,  163,  «. 
Necessary   part  of  electric  railway 

system,  112,  115,  117,  119. 
Size  and  location  of,  49. 
Strength  of,  165-166. 
Telegraph   and   telephone  as  an  ob- 
struction of   the  street,  73-82,  155. 
Use  of  by  several  companies,  42. 
See  Poles  and  Wires. 
Poles  and  Wires. 

As    an    additional    burden,    69-119, 

180. 
Electric    lighting  —  Municipal    au- 
thority, 24. 
When  a  proper  use  of  the  streets, 

88. 
Abutting  owners,  18,  88,  90. 
For  electric  railway  —  Not   a  new 
burden,  18,  20,  104-118. 
Municipal  authority,  16,  17. 
'        Distinguished  from  telegraph  with 
respect  to  use  of  streets,  no. 
As  an  obstruction  of  the  highway — 
Chapters  on,  45,  154. 


Poles  and  Wires — Continued. 

Regulation  of,  under  police  power, 

30- 

Telegraph  and   telephone — Munici- 
pal authority,  23. 

See    Poles;   Obstruction;    Nui- 
sance; Electric  Light;  Elec- 
tric Railway;  Telegraph. 
Police  Telegraphs,  83,  84, 
Police  Regulations. 

Chapter  on,  38. 

Do  not   include  power  to  prohibit^ 
41. 

Electric  light  wires,  39. 

License  fees,  40. 

Telegraphs,  38. 

Police  Power. 

Municipal     consent    to     poles    and 

wires,  30. 
Placing  wires  in  subways,  54-57- 
See  Municipal  Corporations. 

Post  Roads. 

Meaning  of  the  term,  126. 

Power  of  Congress  over  telegraphs 

on, 126-133. 
Telegraphs  on — Chapter  upon,  125. 

Power. 

Electric — Use  of  streets  for,  87. 
Electric  power  wires — Use  of  streets 

for,  87. 
See    Motive    Power;  Municipal 

Corporations. 

Private  Rights. 
Questions  stated,  4. 
In  the  streets  as  part  of  the  subject 
of  this  book,  2,  3. 
Probate  Courts. 

Power  to  regulate  use  of   poles   and 

wires,  43. 
In  Ohio,  judge  of,  to  direct  mode  of 
constructing  telegraph  lines,  28, 
Public  Rights. 

In  the  streets  as  part  of   the  subject 

of  this  book,  2,  3. 
In  the  streets,  Chapters  i  to  6. 
Public  Policy.  See  Exclusive  Use, 

134-135- 
Public. 
Title  to  the  street  in — Distinctions 
with  respect  to,  61. 


INDEX. 


187 


Public  Use. 

Telegraph  is,  134-135- 
Public  Travel.     See  Travel. 
Public  Works. 

Injunction      to      restrain      vacated, 
118. 
Purpose. 

For   which   wires  are  used   an    im- 
portant element,  59,  60. 
Questions. 

Relating  to  private  rights  stated,  3. 
Relating  to  public  rights  stated,  3. 
Relating  to    the    right    to   use  the 
streets  for  electric  wires,  5. 
Railroad  Company. 

License  by,  to  telegraph  company, 

138. 
Contract   with    telephone  company, 

138. 

for  exclusive  use  of  wire,  138. 
Cannot    give    exclusive    rights    for 

telegraph  purposes,  126-129. 
See    Electric    Railw^ay;    Horse 

Railroad;    Steam    Railroad; 

Dummy  Steam  Engine;  Cable 

Railway. 
Exclusive   use    for   telegraph    lines, 

134.  135- 

Horse  and  steam,  extent  of  ordinary 
power  of  municipalities  with  re- 
spect to,  14. 

Telegraph  lines  along — Chapter  on, 

134-135- 
Randolph,  Carman  F. 

Article   on    Eminent  Domain  Over 
Streets,  63,  73. 
Relations. 
Of    electric    wires   to    streets    and 
highways,  2. 
Removal. 
Of  poles  and  wires,  power  of  munici- 
pality, 34,  35,  36,  50-56,  90. 
Resolution. 

When  sufficient    to   give  municipal 
consent,  33,  112. 
Revocation. 
Of   franchise,   when  designation   of 
streets  cannot  be  recalled,  34,  35, 

50-56. 
Of  franchise,  power  to  order  wires 
,        to  be  put  underground,  50-56. 


Rights. 

In  the  street.     See  Public  Rights; 
Private  Rights. 
Roads.     See  Streets. 

Purposes     for     which     they     were 

opened,  2. 
Public,  held  not  to  include  railroads, 

137- 
Rural  Streets. 
Easements  in,  87. 

Opened  for  purpose  of  communica- 
tion as  well  as  travel,  i. 
Runaway  Horse. 

Collision  with  pole,  155. 
Scott  &  Jarnagin. 

Remarks    on   the   telegraph    in    the 

highway,  i- 
Treatise  on  telegraphs,  69,  70. 
Servitude. 

See  Abutting    Landowners; 
Electric    Light;  Electric 
Railway;  Telegraph  and  Tel- 
ephone. 
Sewers. 

Use  of  the  streets  for,  61,  63,  n. 
Cities  may  authorize  use  of  streets 
for,  12. 
Sidewalk. 

Special  privileges  of  landowner  in, 

113- 

Telegraph  poles  in,  49. 

Electric  railway  poles  in,  no,  113. 
Speed. 

Question  for  city  council,  119. 
Statutes. 

On  proceedings  to  condemn,  120. 

Compilations  of  American   on  tele- 
graph and  telephone,  55,  122,  «. 

Collection    of    relating    to   electric 
wire,  55. 

Of   various   States,  compilations  of, 

27,  29,  55,122. 

Of  various  States,  references  to,  12, 

28,  29,  54,  55,  120,  121. 

Steam  Engine.     See  Dummy  Steam 

Engine. 
Steam  Railroads. 

Use  of  streetsfor,  compared  with  use 

for  electric  railway,  no. 
Not  a  proper  use  of  the  streets,  com- 
pensation must  be  made,  98,  loi. 


i88 


INDEX. 


Steam  Railroads — Continued. 
Are  a  new  burden  on  the  land  in  the 

streets,  70. 
Distinguished  from  horse   railroads 

with  respect  to  use   of    streets,  98, 

lOI. 

Extent  of  ordinary  powers  of  munic- 
ipalities with  respect  to,  14. 

Municipal  regulation,  30,  n. 
Steam  Pipes. 

Use  of  the  streets  for,  61,  63. 
Storage  Battery. 

As  an  electric  motor,  22. 

Evidence  of  use  of,  114. 
Streets. 

Abutting  landowner,  rights  of. 

See  Abutting  Landowner. 

Authority  of  some  kind  required  for 
special  use  of,  25. 

Beneficial  use  of  is  in  the  pub- 
lic, 105. 

Designation   of    for   electric   wires, 

31- 

Distinction  between  fee  and  right  of 
way,  4,  12, 

Distinction  as  to  title  to  soil,  82. 

Distribution  of  space  in,  for  special 
uses,  26,  75. 

Electric  light  wires  in.  See  Elec- 
tric Light;  Abutting  Land- 
owners. 

Electric  railway,  14-22,  92,  94,  105, 
109,  no,  112,  113. 

See  Electric  Railway;  Abut- 
ting Landowners. 

Franchises  to  use,  power  of  legis- 
lature and  municipality,  8,  9,  10, 
II,  12. 

Municipal  control  over,  56,  57. 

New  uses  of,  60. 

Occupation  of,  by  electric  wires,  i. 

Obstruction  of,  can  only  be  author- 
ized by  express  act  of  legislature, 
114. 

Ordinary  uses  of.    See  Proper  Uses 

OF. 

Perversion  of  by  electric  railway,  94. 

Elevated  railway,  92,  105. 
Power  of  municipality  with  respect 

to  sewers,  drains,   trees,   gas  and 

water  pipes,  etc.,  12,  13. 


Streets — Coiitintted. 

Powers  of  cities  and  villages  with 

respect  to  use  of,  13. 
Power  to  reserve  parts  of,  for  special 

use,  26. 
Power    of    municipality    to     divert 

from  their  proper  uses,  17. 
Proper  uses    of,  4,  23,  56,  57,  59,  60, 

61,  63,  72,  82,  115,  117. 
Proper     uses     of — Distinction     be- 
tween urban  and  rural,  87. 

Electric  light,  89,  90. 

Extension  to  new  exigencies  and 
new  inventions,  83. 

Horse  railroads,  95,  98. 

Telegraph    and   electric    railway, 
94. 

With   respect  to  steam  and  horse 
railroads,  98,  loi. 
Public  rights  in,  and  mode  of  use  of, 

157- 

Regulation  of  electric  wires  in,  by 
cities,  38. 

Relation  of  electric  wires  to,  2. 

Rights  of  abutting  owners  in,  4. 
See  also  Abutting  Landown- 
ers. 

Rights  of  abutting  landowner  and 
the  public,  65,  66,  158. 

Rights  of  adjacency,  4. 

Rights  in,  are  both  public  and  pri- 
vate, 2. 

Special  rights  of  abutting  landown- 
ers in,  62,  92. 

Telegraph  and  Telephone  wires  in. 

See  Telegraph  and  Telephone. 

Title  to  the  land  in — Whether  in 
abutter  or  the  public,  43,  44,  62-68. 

True  nature  of,  with  respect  to  the 
rights  of  the  public  and  adjoining 
owners,  63,  n. 

Use  of,  for  electric  wires — General 
principles,  i,  7. 

Use  of,  for  telegraph  and  telephone, 
municipal  power,  23. 

Use  of,  for  electric  railway,  munic- 
ipal power,  14-22. 

Uses  of,  for  various  kinds  of  electric 
currents,  ^39-153. 

Uses  of  city  as  distinguished  from 
country  highways,  117. 


INDEX. 


189 


Streets — Continued. 

Uses  of  sidewalk  and  the  middle  of 

the  street,  113. 
Were   laid   out     before    the    towns 
were  built,  67. 
Street  Railroad. 

Includes  electric  railroad,  18. 
Motive  power,  21. 

See  also  Horse  Railroad;  Dummy 
Steam    Engine;    Cable    Rail- 
road;      Electric       Railway; 
Streets;  Abutting  Landown- 
ers;  Municipal  Corporation. 
Substitution  of  Electricity  for 
Horse  Cars. 
No  change  of  use  in,  106,  iii,  116. 
Storms. 

Damages  caused  by,  165. 
Subway  Company. 

Legislation  in  New  York  respecting, 

55- 
Decisions  relating  to,  56,  57. 

Subways.      See    Underground 

Wires. 

Taking  Private  Property. 

Placing   wires   over  streets    is    not, 

US- 
See  Eminent  Domain;  Abutting 
Landowners. 
Taxes. 

Power  to   impose  as  a  condition  of 
municipal  consent,  3. 
Telegraph  and  Electric  Railway. 
Distinctions   and  comparisons  wnth 
respect     to     use     of     streets,     93, 
94. 
Telegraph  and  Telephone. 

Abutting  owners — Chapter   on,  69- 
82. 
Compensation  for  actual  damages, 

83- 
Comparison  with  electric  railway, 

no. 
Cases  in  District  of  Columbia,  76. 
Case  in  Louisiana,  75. 
Cases  in  Massachusetts,  74. 
;        Cases  in  Virginia,  Maryland,  and 

Mississippi,  80,  81. 
Cases  in  Missouri,  73,  74. 
I        Cases  in   Minnesota,   Illinois  and 

Ohio,  79. 


Telegraph  and  Telephone — Cont. 

Cases  in  New  York  and  New 
Jersey,  77-79- 

Rights  of  on  railroad,  89  «,  136. 

Are  the  lines  a  new  burden? — Ar- 
gument for  the  negative,  71. 

Are  the  lines  a  new  burden  ? — Ar- 
gument for  the  affirmative,  72. 

Are  within  the  public  easement  of 
highway,  77-82. 

Not  within  the  public  easement 
of    the    highway,   71-77,   78,  «, 

"3- 
Conclusions,  82. 

Guy  wires,  injuries  from,  161. 

Designation  of  streets  for,  31,  n. 

Poles,  location  of.     See  Poles. 

Police  regulations  respecting,  38. 

Powers  of  cities  with  respect  to,  23. 

Public  uses,  122,  134,  135. 

Wires,  power  of  vestry  or  district 
board  over,  44.. 

Wires  hanging  too  low,  159. 

Wires  without  poles  not  a  burden 
on  the  fee,  76. 

See  Telegraph  Companies  ;  Tel- 
egraph ON  Post  Roads;  Tele- 
graph ON  Railroads. 
Telegraph  Companies. 

Their   rights  and   powers   with   re- 
spect to  post  roads,  125-133. 
Telegraphs  on  Post  Roads. 

Chapter  on,  125. 

Subject  to  State  taxation,  133. 

Subject  to  municipal  control,  132. 

Scope  and  effect  of,  act  of  Congress 
relating  to,  126. 
Telegraphs  on  Railroads. 

Chapter  on,  134-13S. 

Statutory    authority     broadly    con- 
strued, 137. 
Telephone  Companies. 

Interference  with  business   of   elec- 
tric   light    and     electric    railway 
currents,  139-153. 
Telephone.     See  Telegraph. 
Title  to  Land  in  Streets. 

Local  authorities,  77,  «. 

Distinction  as  to  title  in  abutting 
owner  or  in  the  public,  61,  62,  «, 
64,  65,  66,  67,  72,  82. 


190 


INDEX. 


Tolls  axd  Rates. 

Power  to  fix,  42. 
Transfer  Tickets. 

As  a  condition  for  permit   to  use   a 
certain  kind  of  pole,  116. 
Transportation. 

Use  of  highway  for,  161. 
See  Streets,  Uses  Of. 
Travel. 

Use  of  the  streets  for,  105. 
Question  of  interference  with,  is   to 
be   decided     by     the    legislature, 
105. 
Public,  rights  of— How  limited,  158. 
Travelers. 

Injuries  to — Chapter  on,  154. 
Trees. 

Cutting  for  telegraph  lines,  80,  84. 
Along  the  streets — powers  of  cities 
with  respect  to,  12. 
Trolley  System. 

Opposition  to  introduction  of,  92. 
Mode  of  operation,  139-140. 
Operation  of  with  respect  to  electric 

current,  148. 
Single  and    double     described    and 

compared,  143-153. 
Held  not  to  be  dangerous,  11. 
See  Electric  Railway. 
Turnpike. 

Although  post  road,  cannot  be  taken 
without  compensation,  131. 
Turnpike  Companies. 

Cannot  give  exclusive  use  for  tele- 
graph purpose,  127. 
Underground  Wires. 
Chapter  on,  50. 
Distinction  between  these  and  over- 
head wires  with  respect  to  abut- 
ting owners,  86. 
Municipal    and    legislative   control 

over,  50-57. 
Questions  as  to  use  of,  suggested,  3. 
Regulation  of  in  England,  51. 
Statutes  concerning,  51-54. 


Union     Pacific     Railroad     Com- 
pany. 

Acts  of  Congress  relating  to,  138. 
Urban  and  Rural  Easements,  87. 
Use. 

Not  motive  power,  the  true  criterion, 

"3- 
Use   of    the    Streets  and    High- 
ways. 
Principles  governing,   2. 
Van  Fleet,  Vice-Chancellor. 

Opinion  of,  31. 
Village. 

May  authorize  poles  and  wires  for 
lighting  purposes,  89,  90. 
Water  Pipes. 

Laid     without     compensation,     re- 
moved, 88,  n. 
Use  of  streets  for,  61,  63,  115. 
Williamson,  Chancellor. 

Opinion  of  as  to  railroads  in  streets, 

lOI. 

Wires. 

For  electric  railway — Power  of  Mu- 
nicipality, 16. 

Hanging  too  low — Injuries  by  rea- 
son of,  159. 

Hanging  too  low  —  Contributory 
negligence,  162. 

Hanging  too  low,  159,  160,  161, 
162. 

Injuries  from  falling,  154  to  164- 
167. 

Multiplication  of  in  the  streets,  i. 

Obstruction  of  streets  by,  48. 

Serious  obstruction  to  the  streets,  i. 

Without  poles,  not  a  burden  on  the 
fee,  76. 

Obstructing  moving  of  a  house, 
48. 

See  Abutting  Landowners  ; 
Streets;  Electric  Light; 
Electric  Railway;  Telegraph 
and  Telephone;  Poles  and 
Wires. 


